[Federal Register: September 30, 2005 (Volume 70, Number 189)]
[Rules and Regulations]
[Page 57132-57146]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30se05-10]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Regulations No. 4 and 16]
RIN 0960-AF21
Reinstatement of Entitlement to Disability Benefits
AGENCY: Social Security Administration.
ACTION: Final rules.
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SUMMARY: We are publishing final rules regarding the Reinstatement of
Entitlement (Expedited Reinstatement) provision in section 112 of the
Ticket to Work and Work Incentives Improvement Act of 1999. This
provision allows former Social Security disability and Supplemental
Security Income (SSI) disability or blindness beneficiaries, whose
entitlement or eligibility had been terminated due to their work
activity, to have their entitlement or eligibility reinstated in a
timely fashion if they become unable to do substantial gainful work.
These rules provide beneficiaries an additional incentive to return to
work.
DATES: Effective Date: These final rules are effective on October 31,
2005.
Electronic Version: The electronic file of this document is
available on the date of publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html.
It is also available on the Internet
site for SSA (i.e., Social Security Online): http://www.socialsecurity.gov/regulations/
.
FOR FURTHER INFORMATION CONTACT: John Nelson, Team Leader, Employment
Policy Team, Office of Program Development and Research, Social
Security Administration, 6401 Security Boulevard, Room 128 Altmeyer
Building, Baltimore, Maryland 21235-6401, (410) 966-5114 or TTY (410)
966-5609. 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 web site, Social Security Online, at http://www.socialsecurity.gov/
.
SUPPLEMENTARY INFORMATION:
Background
The expedited reinstatement provision, along with other work
incentives and the Ticket to Work program contained in the Ticket to
Work and Work Incentives Improvement Act of 1999 (Pub. L. 106-170) is
intended to expand your options as a Social Security disability
beneficiary or a disabled or blind Supplemental Security Income
recipient. We expect that the expedited reinstatement provision along
with other provisions in the Ticket to Work and Work Incentives
Improvement Act of 1999 will remove some of the disincentives that may
discourage you from either attempting to work or increasing your work
activity. If more beneficiaries with disabilities engage in self-
supporting work, the net result will be an increase in the independence
of disabled beneficiaries, a reduction in the Social Security and
Supplemental Security Income disability rolls, and savings to the
Social Security Trust Fund and general revenues.
General Goals of the Expedited Reinstatement Provision
The expedited reinstatement provision is intended to relieve some
concerns you may have about returning to work. If we terminate your
entitlement or eligibility for benefits due to your work activity, this
provision provides you an easier way to have your entitlement or
eligibility reinstated and to be placed back into payment status. This
process should ease some concerns you may have about what will happen
if your attempt to return to work is unsuccessful.
Advice of the Ticket to Work and Work Incentives Advisory Panel
During the preparation of these final rules, we consulted with the
Ticket to Work and Work Incentives Advisory Panel. The Ticket to Work
and Work Incentives Advisory Panel was established by section 101(f) of
the Ticket to Work and Work Incentives Improvement Act of 1999. This
panel advises the President, the Congress, and us on issues related to
work incentive programs, planning and assistance for individuals with
disabilities and the Ticket to Work Program established under this Act.
Section 112 of the Ticket to Work and Work Incentives Improvement Act
of 1999
Congress indicated that the purpose of section 112 of the Ticket to
Work and Work Incentives Improvement Act of 1999 (the expedited
reinstatement provision) was to encourage disability beneficiaries to
return to work by reassuring them that if they meet our disability
standards their benefits would be restored in a timely fashion should
they become unable to continue working.
The expedited reinstatement provision provides a method for you to
have your disability benefits reinstated without filing an application
if you have had your entitlement to, or eligibility for, benefits
terminated due to your work activity during the previous 5 years, and
you can no longer do substantial gainful activity.
Effect of the Expedited Reinstatement Provision
The expedited reinstatement provision provides you another option
for regaining entitlement to benefits under title II and eligibility
under title XVI of the Act after we have terminated your entitlement to
or eligibility for disability benefits due to your work activity. If
you file a request for expedited reinstatement, you can still file a
new application for benefits under existing initial claim rules.
Prior to the effective date of this provision, when we terminated
your entitlement or eligibility due to work activity, you were required
to file a new application to become entitled to or eligible for
benefits again. We processed your application under rules that required
a new disability determination using the medical requirements that we
apply when you file an initial claim for benefits. You generally were
entitled to receive benefits only after we processed your entitlement
or eligibility determination. If we determined that you again qualified
for benefits, you became eligible for work incentives such as the trial
work period, the reentitlement period, and special SSI eligibility
status under your new period of disability.
The expedited reinstatement provision provides you the option of
requesting that your prior entitlement to or eligibility for disability
benefits be reinstated, rather than filing a new application for a new
period of entitlement or eligibility. Since January 1, 2001, you can
request to be reinstated to benefits if you stop doing substantial
gainful activity within 60 months of your prior termination. At the
time you request reinstatement, you must be unable to engage in
substantial gainful activity because of your medical condition. Your
current impairment must be the same as or related to your prior
impairment and you must be disabled. To determine if you are disabled,
we will use our medical improvement review standard that we use in our
continuing disability review process. Under the medical improvement
review standard, we will generally find that you are disabled,
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unless there is substantial evidence demonstrating that there has been
medical improvement in your impairment(s) and the improvement is
related to your ability to work.
When you request reinstatement you can be paid up to 6 months of
provisional benefits, and may be entitled to Medicare benefits or
Medicaid, while we are deciding whether you qualify for reinstatement.
Provisional benefits, or payments, are cash benefits that can be paid
to you on a temporary basis when you were previously a Social Security
(title II) disability beneficiary or a disabled or blind Supplemental
Security Income (title XVI) recipient and you are now requesting
reinstatement. The period during which you can receive provisional
benefits is your provisional benefit period. This period begins with
the first month you can receive provisional benefits and can never
extend beyond six consecutive months. Your provisional benefit period
will end earlier than the sixth consecutive month if we make our
determination on your request for reinstatement before that month. Your
title II provisional benefit period will also end if you attain full
retirement age or if you do substantial gainful work activity.
You can receive title II provisional benefits beginning with the
month you file your request for reinstatement. We will base your
provisional benefit amount (i.e., the amount of the monthly cash
benefit you receive during the provisional benefit period) on the prior
benefit amount that was actually payable to you under title II. We will
terminate your title II provisional benefits when your provisional
benefit period ends, such as if you do substantial gainful activity.
You can receive title XVI provisional payments beginning with the month
after you file your request for reinstatement. We will base your title
XVI provisional benefit amount (i.e., the amount of the monthly cash
payment you receive during the provisional benefit period) on the
Federal Supplemental Security Income benefit that would actually be
payable to you for each month in the provisional benefit period,
depending on your income. We will terminate your title XVI provisional
payments when your provisional benefit period ends. If you have
previously received provisional benefits based upon a prior request for
reinstatement, you cannot receive additional provisional benefits if
you file a second request for reinstatement based on the same prior
entitlement or eligibility. This could occur, for example, if we denied
your prior request for reinstatement and then you subsequently file a
new request for reinstatement because you believe you meet the
requirements.
We are also amending Sec. Sec. 404.903 and 416.1403 to indicate,
consistent with the expedited reinstatement legislation, that the
determination we make regarding your right to receive provisional
benefits is not an initial determination and it is, therefore, not
subject to administrative review under subpart J of part 404 and
subpart N of part 416.
If we deny your request for reinstatement, we generally will not
consider the provisional benefits you received as an overpayment. If
your reinstatement request is denied, and you have not filed a new
benefits application, we will treat that request as your intent to file
an initial application for benefits. If we approve your request for
reinstatement, we will reinstate your prior disability entitlement or
eligibility and reestablish your Medicare/Medicaid entitlement, as
appropriate, if you are not already entitled to Medicare/Medicaid. We
will pay you reinstated benefits under title XVI beginning with the
month after the month in which you file your request. We will pay you
reinstated benefits under title II beginning no later than the month in
which you file your request. We can pay you title II reinstated
benefits for any of the 12 months preceding your request for
reinstatement if you would have met all of the requirements for
reinstatement had you requested reinstatement in that month. We will
reduce reinstated benefits payable for a month by the amount of any
provisional benefits that you already received for that month.
When we reinstate your entitlement under this provision, you are
then entitled to a 24-month initial reinstatement period. Your 24-month
initial reinstatement period begins with the month your benefits are
reinstated and ends with the 24th month that you have a benefit
payable. For title II purposes, we consider a benefit to be payable in
a month when you do not do substantial gainful activity and the non-
payment provisions in subpart E of part 404 do not apply. For title XVI
purposes, we consider a benefit to be payable in a month when, using
normal payment calculation procedures in subpart D of part 416, we
determine you are due a monthly payment, or you are considered to be
receiving SSI benefits in a month under section 1619(b) of the Act.
After the 24-month initial reinstatement period is completed, you are
eligible for additional work incentives under title II (such as a trial
work period and a reentitlement period), as well as possible future
reinstatement through the expedited reinstatement provision under title
II and title XVI.
Notice of Proposed Rulemaking
We published a Notice of Proposed Rulemaking (NPRM) in the Federal
Register on October 27, 2003 (68 FR 61162), which proposed rules
regarding the expedited reinstatement provision of the Act. We provided
a 60-day period for the public to comment. We subsequently extended the
comment period to January 16, 2004 (69 FR 307 (2004)). We received
comments from 72 commenters. We discuss the significant public comments
we received on the NPRM and provide our responses to those comments
later in this preamble under ``Public Comments on the Notice of
Proposed Rulemaking.'' As we explain below under ``Explanation of
Changes to Regulations,'' in these final rules we are making some
changes from the proposed rules in response to these public comments.
Explanation of Changes to Regulations
We are amending our regulations to provide the rules for expedited
reinstatement. These rules add Sec. Sec. 404.1592b through 404.1592f
to part 404 and Sec. Sec. 416.999 through 416.999d to part 416.
Part 404
Section 404.1592b provides a general overview of expedited
reinstatement and summarizes the basic requirements for expedited
reinstatement, as discussed in Sec. Sec. 404.1592c through 404.1592f.
In response to public comments, we have revised the requirement in the
NPRM that you must have stopped doing substantial gainful activity
because of your medical condition to instead provide that you must be
unable to do substantial gainful activity because of your medical
condition. In these final rules we also revised the proposed reference
in the last sentence of this section from Sec. 404.1592g to Sec.
404.1592f because we deleted proposed Sec. 404.1592e.
Section 404.1592c describes the requirements for reinstatement to
title II benefits. Section 223(i)(1) of the Act lists the requirements
you must meet to have your entitlement reinstated under the title II
expedited reinstatement provision. These rules explain that you must
have previously been entitled as a disabled insured individual, a
disabled child, a disabled widow or widower, or a disabled Medicare
qualified government employee. We must have terminated your prior
entitlement due to your doing substantial gainful activity. You must be
unable to do substantial gainful activity due to your medical
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condition. Your current impairment must be the same as or related to
the impairment on which we based your prior period of disability, and
you must currently be disabled. Section 223(i)(3) of the Act requires
us to use the medical improvement review standard in section 223(f) of
the Act when we determine if you are disabled for the purposes of this
provision. If your entitlement is reinstated, an auxiliary beneficiary
who was previously entitled on your record can also be reinstated. The
auxiliary beneficiary must request reinstatement and must meet the
current entitlement factors for the benefit.
In response to public comments, we are not requiring in these final
rules that you stopped working due to your medical condition. However,
as required under section 223(i)(1)(B)(iii) of the Act, these final
rules provide that you must be unable to do substantial gainful
activity because of your medical condition. We will determine that you
meet the requirement that you are unable to do substantial gainful
activity due to your medical condition when:
(1) You file, under Sec. 404.1592d, your request for reinstatement
stating that you are unable do substantial gainful activity due to your
medical condition,
(2) You do not do substantial gainful activity in the month you
file your request for reinstatement, and
(3) We determine that you are under a disability, based on the
application of the medical improvement review standard, as required by
Sec. 404.1592c(a)(4).
We believe this more closely follows the requirement in section
223(i)(1)(B)(iii) of the Social Security Act and removes a possible
disincentive for you to return to work.
In response to public comments, in these final rules we also
deleted proposed Sec. 404.1592c(b) and redesignated proposed Sec.
404.1592c(c) to Sec. 404.1592c(b). We made these changes from the
proposed rules so that you may be able to make a second request for
reinstatement of entitlement. Therefore, for example, if your request
for expedited reinstatement is denied because we either determine that
your current impairment is not the same as or related to the impairment
that we used as the basis for your previous entitlement or eligibility,
or that you are not disabled, you may be able to be reinstated on a
later request for reinstatement provided you meet the requirements in
Sec. 404.1592c at that time. However, as we explain in Sec.
404.1592e, in these final rules we have added that you cannot be paid
additional provisional benefits based on the subsequent request if you
received provisional benefits based on the first request. By deleting
proposed Sec. 404.1592c(b), these final rules now provide that you may
be able to be reinstated on your request for reinstatement even if,
after your prior entitlement had been terminated because of the
performance of substantial gainful activity, we had made an intervening
determination that you were no longer disabled under the medical
improvement review standard because we conducted a continuing
disability review on a disability entitlement or a medical review on
your Medicare entitlement. We believe these changes make expedited
reinstatement more responsive to your needs, while maintaining the
integrity of the program.
Section 404.1592d describes how to request reinstatement of
benefits under the expedited reinstatement provision. Your request must
be made in writing. Section 223(i)(2)(A) of the Act lists what you must
include in your request for reinstatement and authorizes us to
determine the form of the request and the information it must contain.
You must file your request within the consecutive 60-month period that
begins with the month that we terminated your prior entitlement to
disability benefits due to the performance of substantial gainful
activity. However, we may extend this time period if we determine that
you had good cause for failing to file your request within the 60-month
time period. Your request must state that you are disabled, that your
current impairment is the same as or related to the impairment that was
used as the basis for your prior disability entitlement, and that you
cannot do substantial gainful activity because of your medical
condition. Your request must also include the information we need to
help us determine whether you meet the non-medical factors of
entitlement for the benefit and the information we need to make the
medical determination. Your request for reinstatement must be filed on
or after January 1, 2001. In response to public comments, in these
final rules we changed the proposed rule in Sec. 404.1592d(d)(2) which
stated that you must certify that you became unable to continue to do
substantial gainful activity because of your medical condition. These
final rules have been revised to require that you certify that you
cannot do substantial gainful activity due to your medical condition.
This change is necessary due to our decision to delete the proposed
Sec. 404.1592e.
In response to public comments, we deleted the proposed Sec.
404.1592e as these final rules do not require that you stopped working
(or reduced your work and earnings below the substantial gainful
activity level) because of your impairment. Therefore, the proposed
Sec. 404.1592e is no longer necessary. As a result of this deletion,
we changed Sec. Sec. 404.1592f and 404.1592g in the proposed rules to
Sec. 404.1592e and Sec. 404.1592f, respectively, in these final
rules.
Section 404.1592e now provides information on when your title II
provisional benefits start, how they are computed, when they are paid,
and when they end. Section 223(i)(7) of the Act lists the requirements
for us to pay provisional benefits while we are determining whether to
approve your request for reinstatement. Consistent with the law, these
rules explain that we can pay you up to 6 months of provisional
benefits during your provisional benefit period. In addition, if you
are not already entitled to Medicare, we can reestablish your Medicare
entitlement during your provisional benefit period. Your entitlement to
provisional benefits begins with the month your reinstatement request
is filed. We will base your provisional benefit amount on your monthly
insurance benefit that was actually payable to you at the time we
terminated your prior entitlement. We will increase your prior benefit
amount payable by any intervening cost of living increases that would
have been applicable to the prior benefit amount under section 215(i)
of the Act. If you are entitled to another title II benefit or another
provisional benefit, the maximum benefit amount we will pay you when
all benefits are combined will be the amount of your highest computed
benefit. If you request reinstatement as a disabled widow or widower or
a disabled child, we will not reduce your provisional benefit, or the
payable benefits to other individuals entitled at that time on the same
record when your provisional benefit causes the total benefits payable
on the record to exceed the family maximum.
Based on revisions to the proposed rules that we are making in
response to public comments, these final rules provide that if you have
previously received provisional benefits based upon a prior request for
reinstatement, you cannot receive a second period of provisional
benefits if you file a second request for reinstatement based on the
same prior entitlement. In addition, as already provided in the
proposed rules, we will not pay you provisional benefits for a month if
you are not entitled to
[[Page 57135]]
payment for the month under our usual rules, such as if you are a
prisoner. We also will not pay you provisional benefits for any month
that is after the earliest of the following months: the month we send
you notice of our determination on your request for reinstatement; the
first month you do substantial gainful activity; the month before you
attain retirement age; or the fifth month following the month you filed
your request for reinstatement. You are not entitled to provisional
benefits if, prior to starting your provisional benefits, we determine
that you do not meet the requirements for reinstatement such as when:
we determine that you did not file your request for reinstatement in a
timely manner; or we determine that your prior entitlement did not
terminate because of your doing substantial gainful activity; or, as
provided in these final rules, we determine that, in the month you
requested reinstatement, you did not meet the requirement of being
unable to engage in substantial gainful activity because of your
medical condition. As provided in the final rules, you are also not
entitled to provisional benefits if we determine that your statements
on your request for reinstatement are false. Our determinations on
provisional benefit amounts, when they are payable, and when they
terminate, are final and are not subject to formal administrative
review. We will not recover a previously existing overpayment from your
provisional payments unless you give us permission to do so. If we
determine you are not entitled to reinstated benefits, usually we will
not consider the provisional benefits you received as an overpayment
unless we determine you knew or should have known that you did not
qualify for reinstatement and therefore you should not have received
the provisional benefits. In these final rules we added a clarification
in Sec. 404.1592e(h) that provides if you receive provisional benefits
when you are not entitled to provisional benefits because we determined
you are not entitled to reinstatement before any provisional benefits
were paid to you, the payments may be subject to recovery as an
overpayment. Provisional benefits may also be subject to recovery as an
overpayment if we pay you a provisional benefit for a month that comes
after we determine you are not entitled to reinstated benefits.
In response to public comments, these final rules have been revised
from the proposed rules to allow you to request reinstatement after
being denied in a prior request. As these final rules provide you can
file subsequent requests for reinstatement, we have also revised these
final rules to provide that if you file a subsequent request for
reinstatement on the same prior entitlement, after having received
provisional benefits based upon the prior reinstatement request, you
cannot be paid additional provisional benefits. In these final rules we
changed Sec. 404.1592f from the proposed rule to Sec. 404.1592e since
we deleted in its entirety the proposed Sec. 404.1592e. In these final
rules we have also deleted proposed Sec. 404.1592f(d)(2) and
redesignated proposed Sec. 404.1592f(d)(3) as Sec. 404.1592e(e)(2).
This was necessary since proposed Sec. 404.1592f(2) referenced deleted
Sec. 404.1592c(b).
Section 404.1592f now discusses how we determine your reinstated
benefits consistent with the requirements regarding paying reinstated
benefits in section 223(i) of the Act. These final rules explain that
if we have determined we can reinstate you in the month you filed your
reinstatement request, we will then consider whether we can pay you
retroactive reinstated benefits. We will reinstate your benefits
beginning with the earliest month in the 12-month period immediately
preceding the month you requested reinstatement in which you would have
met all of the reinstatement requirements if you had filed your request
for reinstatement in that month. We will also reinstate your Medicare
entitlement. Your entitlement to title II disability benefits and
Medicare, under the expedited reinstatement provision, cannot be
reinstated for a month prior to January 2001.
We will determine and pay your reinstated monthly benefits under
our normal payment provisions of title II of the Act, with some
exceptions. We will withhold from your reinstated benefits due for a
month the amount of any provisional payments we already paid for that
month. If the provisional benefits we paid you for a month exceed the
amount of reinstated benefits due you for that month, we will consider
the difference as an overpayment. We will use the same date of onset to
calculate your new primary insurance amount as a reinstated individual
that we used in your most recent period of disability. When you are
reinstated, you are entitled to a 24-month initial reinstatement
period. Your initial reinstatement period begins with the month your
reinstated benefits begin and ends when you have had 24 months of
payable benefits. We consider a month a payable month when you do not
do substantial gainful activity and the non-payment provisions in
subpart E of part 404 do not apply. During the initial reinstatement
period, in addition to normal non-payment events, a benefit is not
payable for any month in which you do substantial gainful activity. We
will not apply the provisions of Sec. Sec. 404.1574(c) and 404.1575(d)
regarding unsuccessful work attempts, or the provisions of Sec.
404.1574a regarding averaging of earnings, when we determine if you
have done substantial gainful activity in a month during your initial
reinstatement period. After you complete your initial reinstatement
period, we will consider your future work under the work incentive
provisions of title II of the Act. Your trial work period begins the
month after you complete your initial reinstatement period. Your
reinstated benefits end with the earliest month that precedes the third
month following the month in which we determine your disability ceases,
the month we terminate your benefits for another reason, the month you
reach retirement age, or the month you die.
We consider determinations we make regarding your title II
reinstated benefits to be initial determinations subject to
administrative and judicial review. If we determine you are not
entitled to reinstated benefits, we will consider your request for
reinstatement as your intent to file a new initial claim for the
benefit.
In these final rules we changed Sec. 404.1592g from the proposed
rule to Sec. 404.1592f, since we deleted in its entirety the proposed
Sec. 404.1592e. In these final rules we added a sentence to Sec.
404.1592f(d) that provides if the amount of the provisional benefit
already paid you for a month equals or exceeds the amount of the
reinstated benefit payable for that month so that no additional payment
is due, we will consider that month a payable month under Sec.
404.1592f. We added this sentence to clarify in these final rules our
intent in the NPRM; it was not intended as a change from the proposed
rules. We also changed references to Sec. 404.900 through Sec.
404.999 in paragraph (g) of the NPRM to subpart J of part 404 in these
final rules. This has been done for simplification purposes and is not
intended as a change from the proposed rules.
Part 416
Section 416.999 provides a general overview of expedited
reinstatement and summarizes the basic requirements for expedited
reinstatement, as discussed in Sec. Sec. 416.999a through 416.999d. In
response to public comments, in these final rules we have revised the
requirement in the NPRM that you must have stopped doing
[[Page 57136]]
substantial gainful activity because of your medical condition to
instead provide that you must be unable to do substantial gainful
activity because of your medical condition. In these final rules we
also revised the proposed reference in the last sentence of the section
from Sec. 416.999e to Sec. 416.999d because we deleted the NPRM
proposed Sec. 416.999c.
Section 416.999a describes the requirements for reinstatement to
title XVI benefits. Section 1631(p)(1) of the Act lists the
requirements you must meet to be reinstated under the title XVI
expedited reinstatement provision. These rules explain that you must
have previously been eligible for SSI based on disability or blindness.
We must have terminated your prior eligibility due to earned income or
a combination of earned and unearned income. You must be unable to do
substantial gainful activity due to your medical condition. Your
current impairment must be the same as or related to the impairment on
which we based your prior eligibility, and you must currently be
disabled. Section 1631(p)(3) of the Act requires we use the medical
improvement review standard in section 1614(a)(4) of the Act when we
determine if you are disabled for the purposes of this provision. If
you are reinstated, your spouse can also be reinstated if your spouse
was previously eligible. Your spouse must request reinstatement and
must meet the current eligibility factors for title XVI benefits.
In response to public comments, we are not requiring in these final
rules that you stopped working due to your medical condition. However,
as required under section 1631(p)(1)(B)(iii) of the Act, these final
rules now provide that you must be unable to do substantial gainful
activity because of your medical condition. When you file your request
for reinstatement under Sec. 416.999b that states you are unable to do
substantial gainful activity due to your medical condition; and you do
not do substantial gainful activity in the month you file your request
for reinstatement; and we determine that you are under a disability,
based on the application of the medical improvement review standard, as
required by Sec. 416.999a(a)(4); we will determine that you meet the
requirement that you are unable to do substantial gainful activity due
to your medical condition. We believe this more closely follows the
requirement in section 1631(p)(1)(B)(iii) of the Act and removes a
possible disincentive for you to return to work.
In response to public comments, in these final rules we also
deleted proposed Sec. 416.999a(b) and redesignated proposed Sec.
416.999a(c) to Sec. 416.999a(b). We are making these changes from the
proposed rules so that you may be able to make a second request for
reinstatement of eligibility. Therefore, for example, if your request
for expedited reinstatement is denied because we either determine that
your current impairment is not the same as or related to the impairment
that we used as the basis for your previous entitlement or eligibility,
or that you are not disabled, you may be able to be reinstated on a
later request for reinstatement provided you meet the requirements in
Sec. 416.999a at that time. However, as we explain in Sec. 416.999c,
in these final rules we have added that you cannot be paid additional
provisional benefits based on the subsequent request if you received
provisional benefits based on the first request. By deleting proposed
Sec. 416.999a(b), these final rules now provide that you may also be
able to be reinstated on your request for reinstatement even if, after
your prior eligibility had been terminated because of your work
activity, we had made an intervening determination that you were no
longer disabled under the medical improvement review standard because
we conducted a continuing disability review on a disability
eligibility. We believe these changes make expedited reinstatement more
responsive to your needs, while maintaining the integrity of the
program.
Section 416.999b describes how to request reinstatement of benefits
under the expedited reinstatement provision. Your request must be in
writing. Section 1631(p)(2)(A) of the Act lists what you must include
in your request for reinstatement and authorizes us to determine the
form of the request and the information it must contain. You must file
your request within the consecutive 60-month period that begins with
the month that we terminated your prior eligibility to disability
benefits because of earnings. However, we may extend this time period
if we determine that you had good cause for failing to file your
request within the 60-month time period. Your request must state that
you are disabled, that your current impairment is the same as or
related to the impairment that we used as the basis for your prior
disability eligibility, that you cannot do substantial gainful activity
because of your medical condition, and that you meet all of the non-
medical requirements for eligibility. Your request must also include
the information we need to determine whether you meet the non-medical
factors of eligibility for the benefit and the information we need to
make the medical determination. Your request for reinstatement must be
filed on or after January 1, 2001. In response to public comments, in
these final rules we changed the proposed rule in Sec. 416.999b(e)
which stated that you must certify that you became unable to continue
to do substantial gainful activity because of your medical condition.
These final rules have been revised to require that you certify that
you cannot do substantial gainful activity due to your medical
condition. This change is necessary due to our decision to delete the
proposed Sec. 416.999c.
In response to public comments, we deleted proposed Sec. 416.999c
as these final rules do not require that you stopped working (or
reduced your work and earnings below the substantial gainful activity
level) because of your impairment. Therefore, the proposed Sec.
416.999c is no longer necessary. As a result of this deletion, we
changed Sec. Sec. 416.999d and 416.999e in the proposed rules to
Sec. Sec. 416.999c and 416.999d, respectively, in these final rules.
Section 416.999c now provides information on when your title XVI
provisional benefits start, how they are computed, when they are paid,
and when they end. Section 1631(p)(7) of the Act lists the requirements
for us to pay you provisional benefits while we are determining whether
to approve your request for reinstatement. Consistent with the law,
these final rules explain that we can pay you up to 6 months of
provisional benefits during your provisional benefit period. Your
provisional benefits will begin with the month after you request
reinstatement. We will base your provisional benefit amount on normal
computational methods for an individual receiving SSI benefits under
title XVI of the Act with the same amounts and kind of income. If your
spouse also requests reinstatement, we can pay provisional payments to
your spouse. Your spouse must meet SSI eligibility requirements, except
those relating to the filing of an application, before we can pay
provisional payments. We will use the same computation method used for
you and your spouse's provisional benefit that we would use to figure
an eligible individual and eligible spouse receiving non-provisional
benefits under title XVI of the Act with the same kind and amount of
income. As required by section 1631(p)(8) of the Act, you are not
eligible for state supplementary payments during the provisional
benefit period.
[[Page 57137]]
Based on revisions to the proposed rules that we are making in
response to public comments, these final rules provide that if you have
previously received provisional benefits based upon a prior request for
reinstatement, you cannot receive a second period of provisional
benefits if you file a second request for reinstatement based on the
same prior eligibility. In addition, as already provided in the
proposed rules, we will not pay you provisional benefits for any month
where a suspension or terminating event occurs under our usual rules,
such as when you are in an institution or if you die. We also will not
pay provisional benefits for any month after the earliest month either
of the following events occurs: the month we send you our notice of our
determination on your request for reinstatement; or the sixth month
following the month you filed your request for reinstatement. You are
not eligible for provisional benefits if, prior to starting your
provisional benefits, we determine you do not meet the requirements for
reinstatement such as when: We determine that you did not file your
request for reinstatement timely; or we determine that your prior
eligibility terminated for a reason unrelated to income; or, as
provided in these final rules, we determine that you engaged in
substantial gainful activity in the month you requested reinstatement.
As provided in the final rules, you are also not eligible for
provisional benefits, if we determine that your statements on your
request for reinstatement are false. Our determinations on your
provisional benefit amounts, when they are payable, and when they
terminate, are final and are not subject to formal administrative
review. We will not recover previously existing overpayments from your
provisional payments unless you give us permission to do so. If we
determine that you are not eligible for reinstated benefits, usually we
will not consider the provisional payments you received as an
overpayment unless you knew or should have known that you did not
qualify for reinstatement and you should not have received provisional
payments. In these final rules we added a clarification in Sec.
416.999c(h) that provides if you receive provisional benefits when you
are not entitled to provisional benefits because we determined you are
not entitled to reinstatement before any provisional benefits were paid
to you, the payments may be subject to recovery as an overpayment.
Provisional benefits may also be subject to recovery as an overpayment
if we pay you a provisional benefit for a month that comes after we
determine you are not entitled to reinstated benefits.
In response to public comments, these final rules have been revised
from the proposed rules to allow you to request reinstatement after
being denied in a prior request. As these final rules provide you can
file subsequent requests for reinstatement, we have also revised these
final rules to provide that if you file a subsequent request for
reinstatement on the same prior eligibility, after having received
provisional benefits based upon the prior reinstatement request, you
cannot be paid additional provisional benefits. In these final rules we
changed Sec. 416.999d from the proposed rule to Sec. 416.999c since
we deleted in its entirety the proposed Sec. 416.999c. In these final
rules we have also deleted proposed Sec. 416.999d(d)(2) and
redesignated proposed Sec. 416.999d(d)(3) as Sec. 416.999c(e)(2).
This was necessary since proposed Sec. 416.999d(d)(2) referenced
deleted Sec. 416.999a(b).
Section 416.999d now discusses how we determine your reinstated SSI
benefits consistent with the requirements regarding paying reinstated
benefits in section 1631(p)(4) of the Act. These final rules explain
that we will reinstate your eligibility, and your spouse's eligibility,
with the month following the month you filed your request for
reinstatement. Your eligibility cannot be reinstated for a month prior
to February 2001.
We will determine and pay your reinstated benefits under the normal
payment provisions of title XVI of the Act, with one exception. We will
withhold from your reinstated benefits due in a month the amount of any
provisional payments you were already paid for that month. If we pay
you a provisional benefit for a month that exceeds the amount of your
reinstated benefit due for that month, we will consider the difference
an overpayment. When your request for reinstatement is approved, you
are eligible for a 24-month initial reinstatement period. Your initial
reinstatement period begins with the month your reinstated benefits
begin and ends when you have had 24 months of payable benefits. We
consider a month a payable month when, considering the normal payment
rules, you are due a benefit payment for the month. As a result of
public comments, we have also clarified in these final rules in Sec.
416.999d(c) that we will consider a month a payable month in your
initial reinstatement period if you are considered to be receiving SSI
benefits in a month under section 1619(b) of the Act. After you
complete the initial reinstatement period, you are again eligible for
expedited reinstatement if we terminate your eligibility due to income.
Your reinstated benefits end with the earliest month that precedes the
third month following the month in which we determine your disability
ceases, the month before we terminate your eligibility for another
reason, or the month you die.
We consider determinations we make regarding your title XVI
reinstated benefits to be initial determinations subject to
administrative and judicial review. If we determine you are not
eligible for reinstated benefits we will consider your request for
reinstatement your intent to file a new initial claim for benefits.
In these final rules we changed Sec. 416.999e from the proposed
rule to Sec. 416.999d since we deleted in its entirety the proposed
Sec. 416.999c. In these final rules we added a sentence to Sec.
416.999d(c) that provides if the amount of the provisional benefit
already paid you for a month equals or exceeds the amount of the
reinstated benefit payable for that month so that no additional payment
is due, we will consider that month a payable month under Sec.
416.999d. We also changed references to Sec. Sec. 416.1400 through
416.1499 in paragraph (e) of the NPRM to subpart N of part 416 in these
final rules. This has been done for simplification purposes and is not
intended as a change from the proposed rules.
Public Comments
We published a Notice of Proposed Rulemaking (NPRM) in the Federal
Register on October 27, 2003 (68 FR 61162), which proposed rules
regarding the Expedited Reinstatement provision. We provided a 60-day
period for the public to comment ending December 26, 2003. We
subsequently extended the comment period to January 16, 2004. (69 FR
307 (1994)). We received comments from 72 commenters. We carefully
considered the comments we received on the proposed rules in publishing
these final rules. The comments we received and our responses to the
comments are set forth below. Although we condensed, summarized, or
paraphrased the comments, we believe we have expressed the views
accurately and have responded to all the relevant issues raised.
Comments and Responses
Comment: Multiple commenters indicated that we should modify
proposed Sec. Sec. 404.1592c(b) and 416.999a(b), which stated that
your entitlement could not be reinstated
[[Page 57138]]
under the expedited reinstatement provision if we had previously denied
your prior request for expedited reinstatement because we determined
you were not disabled or because we determined you did not have a same
as or related impairment, or because, after your prior entitlement had
been terminated because of your work activity, we had made an
intervening determination that you were no longer disabled based upon a
prior medical review or continuing disability review. These commenters
indicated that these sections could limit the effectiveness of
expedited reinstatement by not allowing you to use this provision more
than once. Other commenters suggested that we should either delete
Sec. Sec. 404.1592c(b) and 416.999a(b) or provide a time limit after
which a second request for reinstatement could be allowed.
Response: Based upon these comments, we decided to delete proposed
Sec. Sec. 404.1592c(b) and 416.999a(b) from these final rules.
Therefore, if your request for expedited reinstatement is denied
because we either determine that your current impairment is not the
same as or related to the impairment that we used as the basis for your
previous entitlement or eligibility, or that you are not disabled, as
determined under the medical improvement review standard in Sec. Sec.
404.1594(a) through 404.1594(e), 416.994, or 416.994a, you may be able
to be reinstated on a later request for reinstatement provided you meet
the requirements in Sec. 404.1592c or Sec. 416.999a at that time.
However, as we explain in our discussion of Sec. 404.1592e and Sec.
416.999c, these final rules have been revised to provide that you
cannot be paid additional provisional benefits based on a subsequent
request if you received provisional benefits based on the first
request. You also may be able to be reinstated on your request for
reinstatement if, after your prior entitlement had been terminated
because of your work activity, we made an intervening determination
that you were no longer disabled under the medical improvement review
standard because we conducted a continuing disability review on a
disability entitlement or eligibility or a medical review on your
Medicare entitlement. We believe these changes make expedited
reinstatement more responsive to those people with episodic impairments
and serve as a better incentive to return to work, while also
maintaining the integrity of the program.
Comment: Multiple commenters indicated that we should change our
proposed rules in Sec. Sec. 404.1592b, 404.1592e, 416.999 and 416.999c
to state that you should not have to have stopped working due to your
medical condition to qualify for expedited reinstatement.
Response: We agree with these comments. In these final rules we
deleted the requirement in NPRM sections Sec. Sec. 404.1592b,
404.1592e, 416.999, and 416.999c that you must have stopped working due
to your medical condition. These final rules have been revised to
require under Sec. Sec. 404.1592b, 404.1592c(a)(4)(i), 416.999, and
416.999a(4)(i) that you must be unable to do substantial gainful
activity because of your medical condition. Also, when you file your
request for reinstatement under Sec. Sec. 404.1592d and 416.999b these
final rules provide, as required by sections 223(i)(2)(A)(ii) and
1631(p)(2)(A)(ii) of the Act, that you will need to certify that you
cannot do substantial gainful activity due to your medical condition.
This requirement was changed from the NPRM that you certify that you
became unable to do substantial gainful activity due to your medical
condition. When you file your request for reinstatement stating that
you cannot do substantial gainful activity due to your medical
condition, you do not do substantial gainful activity in the month you
file your request for reinstatement, and we determine that you are
under a disability, based on the application of the medical improvement
review standard, as required by Sec. Sec. 404.1592c(a)(4) and
416.999a(a)(4), we will then determine that you meet the requirement
that you cannot do substantial gainful activity due to your medical
condition. We believe this more closely follows the requirement in
sections 223(i)(1)(B)(iii) and 1631(p)(1)(B)(iii) of the Social
Security Act as it conforms to the plain language of the statue that
states your disability must render you unable to do substantial gainful
activity. Therefore, your medical condition does not have be the reason
you stopped working, but it must cause you to now be unable to do
substantial gainful activity.
We, therefore, deleted in their entirety the proposed rules in
Sec. Sec. 404.1592e and 416.999c as they are no longer necessary.
Since we deleted Sec. Sec. 404.1592e and 416.999c, we changed proposed
Sec. Sec. 404.1592f, 404.1592g, 416.999d and 416.999e to Sec. Sec.
404.1592e, 404.1592f, 416.999c and 416.999d, respectively, in these
final rules. As indicated above, in these final rules we have also made
necessary changes in proposed Sec. Sec. 404.1592b, 404.1592d, 416.999
and 416.999b.
Comment: Multiple commenters expressed the view that if we remove
the requirement in Sec. Sec. 404.1592e and 416.999c that you must have
stopped your work activity due to your medical condition, we could then
also remove the requirement that we must do a continuing disability
review to determine whether you are disabled when you request
reinstatement. One commenter suggested that we should reestablish the
medical diary review date on your reinstatement and do the medical
review at the previously scheduled time.
Response: We deleted proposed Sec. Sec. 404.1592e and 416.999c.
However, even though we deleted those rules, we still have to make a
medical determination when you request reinstatement. Sections
223(i)(3) and 1631(p)(3) of the Act require we use the requirements of
sections 223(f) and 1614(a)(4) to determine whether you are under a
disability, or blind or disabled, respectively. These sections also
require that you must have a current physical or mental impairment that
is the same as or related to the impairment that was the basis for the
finding of disability that gave rise to your prior entitlement or
eligibility. Therefore, the medical determination we make when you
request reinstatement is an entitlement or eligibility determination
that uses, in part, our medical improvement review standard. Since the
statute requires you must be disabled (or blind), we are continuing to
include that requirement in these final rules in Sec. Sec.
404.1592c(a)(4) and 416.999a(a)(4).
Comment: Multiple commenters suggested that we reword the preamble
explanation of proposed Sec. 404.1592f(a)(6) (Sec. 404.1592e(a)(6) in
these final rules) to more closely match the wording of the regulation.
These commenters stated that the wording in the preamble could be
misinterpreted to mean that we would adjust provisional benefits
payable when the provisional benefits, plus the benefit payable to
beneficiaries already entitled on the record, exceed the family maximum
benefit payable.
Response: We reworded the preamble discussion of this provision to
more closely match the wording of Sec. 404.1592e(a)(6) in these final
rules. We believe the revised preamble is clearer as it now states that
we will not reduce your provisional benefit, or the payable benefits to
other individuals entitled at that time on the same record, when your
provisional benefit causes the total benefits payable on the record to
exceed the family maximum.
Comment: Multiple commenters indicated that under proposed
[[Page 57139]]
Sec. Sec. 404.1592g(c)(1) and 416.999e(b) (Sec. Sec. 404.1592f(c)(1)
and 416.999d(b) in these final rules) we should not recover as an
overpayment provisional benefits that were paid to you that exceed the
amount of the reinstated benefit you are due when the family maximum
benefit is involved.
Response: Section 223(i)(7)(D) (and section 1631(p)(7)(D) for SSI
cases) of the Act generally provides for the exclusion of the
provisional benefits you have been paid from recovery as an overpayment
when we determine that you are not entitled to reinstated benefits.
That statutory exclusion is not applicable when we determine that you
are entitled to reinstated benefits. Section 223(i)(4)(B)(iii) (and
section 1631(p)(4)(B)(ii) for SSI cases) requires us to reduce your
reinstated benefits by the amount of any provisional benefits you have
been paid for the month. The Act does not provide for the exclusion
from possible recovery as an overpayment the amount of provisional
benefits that exceed your reinstated benefits when you are reinstated.
We believe the number of overpayments, and the amount of those
overpayments, created under Sec. Sec. 404.1592f(c)(1) and 416.999d(c)
of these final rules will be minimal. You can also request we waive
adjustment or recovery of the overpayment under subpart F of part 404
(subpart E of part 416 for SSI cases).
Comment: Multiple commenters indicated that the 24 month initial
reinstatement period in Sec. 404.1592g(d) and Sec. 416.999e(c),
(Sec. Sec. 404.1592f(d) and 416.999d(c) in these final rules) is
confusing and should be simplified. One commenter expressed concern
that we may not be able to process monthly wage reports on a timely
basis, which could serve as a disincentive for you to return to work.
Response: The 24 month initial reinstatement period is established
by sections 223(i)(6) and 1631(p)(6) of the Act. Furthermore, section
223(i)(4)(c) specifically provides that, when you are reinstated under
the expedited reinstatement provision, we may not pay a benefit for any
month in which you engage in substantial gainful activity. In
developing the proposed rules, we attempted to avoid any unnecessary
complexity regarding the 24 month initial reinstatement period, and did
not add any complexity beyond what the statute requires. We have
changed the section numbers from Sec. Sec. 404.1592g and 416.999e to
Sec. Sec. 404.1592f and 416.999d, respectively, because, as explained
in response to another comment, we decided to delete the proposed
Sec. Sec. 404.1592e and 416.999c. As a result of these comments, we
have included two clarifications in these final rules that were not in
the proposed rules. We have clarified in Sec. 404.1592f(d) (and Sec.
416.999d(c)) of these final rules that if the amount of the provisional
benefit already paid you for a month equals or exceeds the amount of
the reinstated benefit payable for that month, so no additional payment
is due, we will consider that month a payable month in your initial
reinstatement period. We have also clarified in these final rules in
Sec. 416.999d(c) that we will consider a month a payable month in your
initial reinstatement period if you are considered to be receiving SSI
benefits in a month under section 1619(b) of the Act. We recognize the
need to process your work reports in a timely manner. We believe
actions we have taken, outside of these final rules, are addressing
this concern. We do not believe these final rules are the appropriate
avenue to address this issue.
Comment: One commenter indicated that if you are requesting
reinstatement on the record of an insured person under proposed Sec.
404.1592c(c), you should not be required to file a new application to
receive those benefits.
Response: Section 223(i)(5) of the Social Security Act provides
that we may reinstate your entitlement on the record of an insured
person if we determine that you satisfy the requirements for
entitlement to such benefits (other than the requirements related to
the filing of an application). Therefore, under proposed Sec.
404.1592c(c), redesignated as Sec. 404.1592c(b) in these final rules,
and Sec. 404.1592d, you must make a request for reinstatement (as
opposed to filing an application) and your request must be in writing
and provide us the information we request so that we can determine
whether you meet the requirements for entitlement. The purpose of the
form we require is to allow us to collect the information we need to
determine whether you meet the requirements for reinstatement and to
determine your proper benefit amount should we determine you can be
reinstated.
Comment: Multiple commenters indicated that we should design a
separate form to use to request reinstatement under Sec. Sec.
404.1592d and 416.999b, rather than using already existing forms we use
for other purposes. Commenters suggested we should possibly tailor the
form to the reinstatement requirements or make the form shorter and
easier to complete.
Response: Sections 223(i)(2)(A) and 1631(p)(2)(A) of the Act
provide that we should determine the form and the information we need
in your reinstatement request. These sections also specifically require
that your request must include a statement that you are under a
disability, the impairment that is the basis for the finding of
disability is the same as or related to the impairment that was the
basis for the finding of disability that gave rise to your prior
disability entitlement, and that your disability renders you unable to
perform substantial gainful activity. Therefore, your request for
reinstatement under Sec. Sec. 404.1592d and 416.999b must be made in
writing and must provide us the information we need so that we can
determine whether you meet the requirements for reinstatement. We have
designed separate reinstatement request forms for you to use to request
reinstatement. The purpose of the supplemental forms we require is to
allow us to collect the additional information we need to determine
whether you meet the requirements for reinstatement and to determine
your proper benefit amount should we determine you can be reinstated.
We are not developing a specialized supplemental form to collect the
additional information we need, as the information needed is the same
information we can collect using our existing forms.
Comment: One commenter indicated that deciding whether to file for
reinstatement versus filing a new initial claim application may be
difficult, so you should seek advice. This commenter suggested that we
should include language in these final rules explaining the complexity
of this decision and the need to consult with our staff and possibly
others prior to making this decision.
Response: Our staff is trained to assist you when you decide
whether to file a new initial application, or whether to file for
expedited reinstatement. There can be advantages to filing a request
for expedited reinstatement such as: the payment of provisional
benefits, entitlement to Medicare benefits or Medicaid, using the
medical improvement review standards for the medical determination, and
protecting your filing for an initial claim if your expedited
reinstatement request is denied. Also, for Social Security benefit
purposes, if your benefits are reinstated on your own earnings record,
we will compute your primary insurance amount with the same date of
onset we used in your most recent period of disability on your earnings
record. Since we will not pay you reinstated benefits for any months of
substantial gainful
[[Page 57140]]
activity during your initial reinstatement period, this could also be
an advantage in extending your entitlement. There could also be some
disadvantages to filing a request for reinstatement rather than a new
initial application: such as, if we deny your request for reinstatement
because we determine you are not disabled under the medical improvement
review standard, we could also stop your Medicare benefits; in some
circumstances your monthly benefit amount could be less than it would
be if you became entitled to disability benefits again by filing a new
application; and your trial work period begins after you have completed
your 24 month initial reinstatement period rather than being
immediately available to you if you became entitled again by filing a
new application. It will normally be to your advantage to request
expedited reinstatement rather than filing a new initial application;
however, this decision will depend on your particular circumstances and
you should discuss this thoroughly with our staff at the appropriate
time. Since these decisions must be made based upon your own particular
circumstances, we are not placing language in these final rules about
these discussions beyond what is required to be eligible for, or
entitled to, reinstatement.
When you contact us about filing a new initial application for
benefits, or about requesting reinstatement, our staff will discuss
with you your options and the effect of your decision. You could also
choose to obtain information about your options from other
knowledgeable sources. We want to make sure you make the decision that
is the most advantageous for you. Since the decision on whether to
request reinstatement is your decision, you should consider all of your
individual circumstances, however, we do not believe we could properly
discuss in these final rules everything you should consider. Since we
cannot identify in these final rules all of the information you may
need to make your decision, we also do not believe we could tell you
how you should arrive at your decision. Therefore, while we do
encourage you to discuss your situation with our staff and others who
would be helpful, we do not believe we can include in these final rules
a rule on how you should arrive at your decision.
Comment: One commenter noted that proposed Sec. 416.999d (Sec.
416.999c in these final rules) discusses overpayment policies for
provisional benefits when we determine that you are not eligible to
receive reinstated benefits and suggested that clarifying this language
may be helpful, especially when we say that provisional benefits
already paid under Sec. 416.999c will not be subject to recovery as an
overpayment unless we determine you knew, or should have known, you did
not meet the requirements for reinstatement.
Response: We considered this comment and decided not to change
these final rules. The specific language regarding ``whether you knew,
or should have known,'' is in Sec. 416.999c(h) and is based upon the
standard set forth in section 1631(p)(7)(D) of the Act. In these final
rules we used the same phrasing as in the statute for whether you knew,
or should have known. Our determination on whether you knew or should
have known you did not meet the requirements for reinstatement will be
based on the facts of your situation.
Comment: Multiple commenters indicated that under proposed
Sec. Sec. 404.1592f and 416.999d (Sec. Sec. 404.1592e and 416.999c in
these final rules), your provisional benefits should be extended beyond
the six month limitation if we cannot make our determination within six
months, or we should ensure all reinstatement determinations are made
within six months.
Response: Sections 223(i)(7)(C)(ii) and 1631(p)(7)(C)(ii) of the
Act require us to stop your provisional benefits with the earlier of
the month in which we make our determination on your eligibility or
entitlement for reinstated benefits or with the end of the fifth month
after your provisional benefits start. Therefore, we can pay you no
more than six months of provisional benefits. While we do try to make
all determinations within this six month timeframe, since the Act
considers the possibility we may not be able to do this and requires we
stop payments if we haven't, we do not have the authority to extend
provisional benefits beyond the consecutive six months that begin with
the first month your provisional benefits can start under Sec.
404.1592e or Sec. 416.999c of these final rules.
Comment: One commenter indicated that we should clarify the
circumstances when benefits would be offered under proposed Sec.
416.999e(f) (Sec. 416.999d(f) of these final rules) when we say that
if we deny your request for reinstatement, the denial protects your
filing a new claim.
Response: Section 1631(p)(2)(B) (section 223(i)(2)(B) for title II
cases) of the Act provides that a request for reinstatement may lead to
constitute an application for benefits if we determine you are not
eligible for reinstated benefits. These final rules, therefore, provide
that if you request reinstatement under Sec. 416.999b and we determine
that we cannot reinstate your eligibility, we will then treat your
request for reinstatement as your intent to file a new initial claim
(i.e., a protective filing). The NPRM and these final rules do not
place any restrictions on having your reinstatement request treated as
a protective filing, other than we must determine you are not eligible
for reinstated benefits. If we determine you are not eligible for
reinstatement, you can then file a new initial application for benefits
and have the date you filed your request for reinstatement considered
to be your application filing date. If we determine your benefits
cannot be reinstated, that determination is considered an initial
determination and you can also request review if you are dissatisfied
with it. If you choose, you can file a new initial application for
benefits at the same time you request we review our determination that
your benefits cannot be reinstated.
Comment: One commenter indicated that since an expedited
reinstatement determination that denies eligibility becomes a new
application there appears to be little gained by our insisting that the
expedited reinstatement determination not be an initial determination
for appeal purposes.
Response: We have considered this comment and have not changed
these final rules. These final rules provide, under Sec. Sec.
404.1592f and 416.999d, that determinations we make regarding your
entitlement to or eligibility for reinstated benefits are initial
determinations for purposes of our administrative review process. The
NPRM, and these final rules, provide in Sec. Sec. 404.903,
404.1592e(f), 416.999c(f), and 416.1403, that determinations we make
regarding your provisional benefits are not initial determinations and
are not subject to administrative or judicial review. We believe the
commenter may have confused provisional benefit determinations with
determinations we make regarding your entitlement to or eligibility for
reinstatement.
Comment: Multiple commenters indicated that we should provide a
means by which you can obtain a new ticket under the Ticket to Work
program when your entitlement is reinstated under the expedited
reinstatement provision.
Response: If you are reinstated under the expedited reinstatement
provision, under Sec. Sec. 404.1592b through 404.1592f or Sec. Sec.
416.999 through 416.999d, you may be eligible for a new ticket under
Sec. 411.125(c). Since the Ticket to Work program already provides
those rules,
[[Page 57141]]
we have not included them in these final rules.
Comment: Multiple commenters stated that we should add a section to
the expedited reinstatement rules to provide different rules for people
using a ticket under the Ticket to Work program.
Response: Sections 223(i) and 1631(p) of the Act do not provide us
the authority to provide different rules for you if you are using a
ticket as part of the Ticket to Work program under Sec. Sec. 411.100
through 411.735. The expedited reinstatement provision is a work
incentive that you can use if you meet the requirements indicated in
Sec. 404.1592b or Sec. 416.999, without consideration of whether you
are using a ticket. We cannot add rules in these final rules that
provide different rules for you if you are using a ticket.
Comment: One commenter stated that if you have assigned and are
using a ticket under the Ticket to Work program, you should be allowed
to move into payment status when you are not engaging in substantial
gainful activity.
Response: As we noted in the prior response, we do not have the
statutory authority to pay you benefits using different rules if you
are using a ticket under the Ticket to Work Program. Section 223(i)(6)
of the Act provides that after you have been reinstated and you have
had 24 payable months, you will be afforded the work incentives that
would have been provided you if you had filed a new initial
application. Therefore, as we indicate in these final rules, after you
have completed your 24 month initial reinstatement period you will then
be provided a new trial work period and then a reentitlement period
using the rules in Sec. Sec. 404.1592 and 404.1592a.
Comment: One commenter expressed the view that the expedited
reinstatement rules may discourage your employment network, under the
Ticket to Work program, from providing additional services. The
provisional benefit period could encourage an employment network to
stop services during that period. In addition, the commenter noted that
if we provide you with a new ticket when benefits are reinstated, we
must cancel the old ticket.
Response: Sections 223(i) and 1631(p) of the Act provide the
statutory requirements for paying provisional benefits when you request
reinstatement. These final rules include the rules we will use to
determine when we can pay you provisional benefits. Under Sec.
404.1592e(d) in these final rules, and consistent with the statutory
requirements, we will not pay you a provisional benefit for any month
that is after the month you do substantial gainful activity. In
addition, under Sec. 416.999c, we will determine your benefits payable
for supplemental security income purposes using our normal income
rules. Therefore, the disincentive for an employment network to provide
services to you during the provisional benefit period is lessened by
the fact that if you return to work at a substantial level we will stop
paying you provisional benefits. In addition, when you are reinstated,
we can provide you a new ticket if you meet the requirements under
Sec. 411.125(c). If we provide you with a new ticket, we will
terminate your prior ticket under Sec. 411.155(b) and (c)(7). We do
not believe that the expedited reinstatement rules provide a
disadvantage to your employment network in comparison to the rules for
establishing entitlement or eligibility based on the filing of a new
application. If your new entitlement or eligibility were based upon
your filing a new initial application for benefits, we would terminate
your prior ticket under Sec. 411.155(b) and (c)(6). In that case, you
would receive a new ticket if you meet the requirements of Sec.
411.125(a) and (b). By providing you a new ticket, you are then able to
receive services and your employment network can then receive payments
from us based upon the new ticket.
Comment: One commenter suggested that we should discuss how
expedited reinstatement, unemployment insurance, and the Workforce
Investment Act interrelate. This commenter pointed out that if we
determine you cannot be reinstated that there may be other services you
can receive.
Response: If we determine that we cannot reinstate you after you
have requested expedited reinstatement, under Sec. Sec. 404.1592f(h)
and 416.999d(f), your request for reinstatement serves as your intent
to claim benefits. Therefore, you can file a new initial application
for benefits. If we determine your benefits cannot be reinstated, that
determination is considered an initial determination and you can
request review if you are dissatisfied with it. We did not discuss in
these final rules other services you may be able to receive if your
reinstatement request is denied. Those services can vary depending upon
where you live and your particular circumstances and those rules are
beyond the scope of these final rules.
Regulatory Procedures
Executive Order 12866
We consulted with the Office of Management and Budget (OMB) and
determined that these final rules meet the criteria for a significant
regulatory action under Executive Order 12866, as amended by Executive
Order 13258. Thus, they were subject to OMB review.
Regulatory Flexibility Act
We certify that these final rules would not have a significant
economic impact on a substantial number of small entities because they
would primarily affect only individuals. Thus an initial regulatory
flexibility analysis as provided in the Regulatory Flexibility Act, as
amended, is not required.
Paperwork Reduction Act
The Paperwork Reduction Act (PRA) of 1995 says that no persons are
required to respond to a collection of information unless it displays a
valid OMB control number. In accordance with the PRA, SSA is providing
notice that the Office of Management and Budget has approved the
information collection requirements contained in sections 404.1592c,
404.1592d, 416.999a, and 416.999b of these final rules. The OMB Control
Number for this collection is 0960-0690, expiring 08/31/2007.
(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; 96.006,
Supplemental Security Income.)
List of Subjects
20 CFR Part 404
Administrative practice and procedure, Blind, Disability benefits,
Old-age, Survivors, and Disability Insurance, Reporting and
recordkeeping requirements, Social Security.
20 CFR Part 416
Administrative practice and procedure, Aged, Blind, Disability
benefits, Public assistance programs, Reporting and recordkeeping
requirements, Supplemental Security Income (SSI).
Dated: September 26, 2005.
Jo Anne B. Barnhart,
Commissioner of Social Security.
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For the reasons set forth in the preamble, we are amending part 404,
subparts J and P, and part 416, subparts I and N, of title 20 of the
Code of Federal Regulations to read as follows:
[[Page 57142]]
PART 404--FEDERAL OLD-AGE, SURVIVOR AND DISABILITY INSURANCE (1950-
)
Subpart J--[Amended]
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1. The authority citation for subpart J of part 404 is revised to read
as follows:
Authority: Secs. 201(j), 204(f), 205(a), (b), (d)-(h), and (j),
221, 223(i), 225, and 702(a)(5) of the Social Security Act (42
U.S.C. 401(j), 404(f), 405(a), (b), (d)-(h), and (j), 421, 423(i),
425, and 902(a)(5); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42 U.S.C.
405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98 Stat. 1802
(42 U.S.C. 421 note).
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2. Amend Sec. 404.903 to revise paragraphs (u) and (v) and add
paragraph (w) to read as follows:
Sec. 404.903 Administrative actions that are not initial
determinations.
* * * * *
(u) Determining whether we will refer your overpayment to the
Department of the Treasury for collection by offset against Federal
payments due you (see Sec. Sec. 404.527 and 422.310 of this chapter);
(v) Determining whether we will order your employer to withhold
from your disposable pay to collect an overpayment you received under
title II of the Social Security Act (see part 422, subpart E, of this
chapter); and
(w) Determining whether provisional benefits are payable, the
amount of the provisional benefits, and when provisional benefits
terminate (see Sec. 404.1592e).
Subpart P--[Amended]
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3. The authority citation for subpart P of part 404 continues to read
as follows:
Authority: Secs. 202, 205(a), (b), and (d)-(h), 216(i), 221(a)
and (i), 222(c), 223, 225, and 702(a)(5) of the Social Security Act
(42 U.S.C. 402, 405(a), (b), and (d)-(h), 416(i), 421(a) and (i),
422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110
Stat. 2105, 2189.
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4. Add new Sec. Sec. 404.1592b through 404.1592f to read as follows:
Sec. 404.1592b What is expedited reinstatement?
The expedited reinstatement provision provides you another option
for regaining entitlement to benefits when we previously terminated
your entitlement to disability benefits due to your work activity. The
expedited reinstatement provision provides you the option of requesting
that your prior entitlement to disability benefits be reinstated,
rather than filing a new application for a new period of entitlement.
Since January 1, 2001, you can request to be reinstated to benefits if
you stop doing substantial gainful activity within 60 months of your
prior termination. You must not be able to do substantial gainful
activity because of your medical condition. Your current impairment
must be the same as or related to your prior impairment and you must be
disabled. To determine if you are disabled, we will use our medical
improvement review standard that we use in our continuing disability
review process. The advantage of using the medical improvement review
standard is that we will generally find that you are disabled unless
your impairment has improved so that you are able to work or unless an
exception under the medical improvement review standard process
applies. We explain the rules for expedited reinstatement in Sec. Sec.
404.1592c through 404.1592f.
Sec. 404.1592c Who is entitled to expedited reinstatement?
(a) You can have your entitlement to benefits reinstated under
expedited reinstatement if--
(1) You were previously entitled to a disability benefit on your
own record of earnings as indicated in Sec. 404.315, or as a disabled
widow or widower as indicated in Sec. 404.335, or as a disabled child
as indicated in Sec. 404.350, or to Medicare entitlement based on
disability and Medicare qualified government employment as indicated in
42 CFR 406.15;
(2) Your disability entitlement referred to in paragraph (a)(1) of
this section was terminated because you did substantial gainful
activity;
(3) You file your request for reinstatement timely under Sec.
404.1592d; and
(4) In the month you file your request for reinstatement--
(i) You are not able to do substantial gainful activity because of
your medical condition as determined under paragraph (c) of this
section;
(ii) Your current impairment is the same as or related to the
impairment that we used as the basis for your previous entitlement
referred to in paragraph (a)(2) of this section; and
(iii) You are disabled, as determined under the medical improvement
review standard in Sec. Sec. 404.1594(a) through (e).
(b) You are entitled to reinstatement on the record of an insured
person who is or has been reinstated if--
(1) You were previously entitled to one of the following benefits
on the record of the insured person--
(i) A spouse or divorced spouse benefit under Sec. Sec. 404.330
and 404.331;
(ii) A child's benefit under Sec. 404.350; or
(iii) A parent's benefit under Sec. 404.370;
(2) You were entitled to benefits on the record when we terminated
the insured person's entitlement;
(3) You meet the requirements for entitlement to the benefit
described in the applicable paragraph (b)(1)(i) through (b)(1)(iii) of
this section; and
(4) You request to be reinstated.
(c) We will determine that you are not able to do substantial
gainful activity because of your medical condition, under paragraph
(a)(4)(i) of this section, when:
(1) You certify under Sec. 404.1592d(d)(2) that you are unable to
do substantial gainful activity because of your medical condition;
(2) You do not do substantial gainful activity in the month you
file your request for reinstatement; and
(3) We determine that you are disabled under paragraph (a)(4)(iii)
of this section.
Sec. 404.1592d How do I request reinstatement?
(a) You must make your request for reinstatement in writing.
(b) You must have filed your request on or after January 1, 2001.
(c) You must provide the information we request so that we can
determine whether you meet the requirements for reinstatement as
indicated in Sec. 404.1592c.
(d) If you request reinstatement under Sec. 404.1592c(a)--
(1) We must receive your request within the consecutive 60-month
period that begins with the month in which your entitlement terminated
due to doing substantial gainful activity. If we receive your request
after the 60-month period we can grant you an extension if we determine
you had good cause under the standards explained in Sec. 404.911 for
not filing the request timely; and
(2) You must certify that you are disabled, that your current
impairment(s) is the same as or related to the impairment(s) that we
used as the basis for the benefit you are requesting to be reinstated,
and that you are unable to do substantial gainful activity because of
your medical condition.
Sec. 404.1592e How do we determine provisional benefits?
(a) You may receive up to 6 consecutive months of provisional cash
benefits and Medicare during the provisional benefit period, while we
determine whether we can reinstate your disability benefit entitlement
under Sec. 404.1592c--
(1) We will pay you provisional benefits, and reinstate your
Medicare if you are not already entitled to Medicare, beginning with
the month you file your
[[Page 57143]]
request for reinstatement under Sec. 404.1592c(a).
(2) We will pay you a monthly provisional benefit amount equal to
the last monthly benefit payable to you during your prior entitlement,
increased by any cost of living increases that would have been
applicable to the prior benefit amount under Sec. 404.270. The last
monthly benefit payable is the amount of the monthly insurance benefit
we determined that was actually paid to you for the month before the
month in which your entitlement was terminated, after we applied the
reduction, deduction and nonpayment provisions in Sec. 404.401 through
Sec. 404.480.
(3) If you are entitled to another monthly benefit payable under
the provisions of title II of the Act for the same month you can be
paid a provisional benefit, we will pay you an amount equal to the
higher of the benefits payable.
(4) If you request reinstatement for more than one benefit
entitlement, we will pay you an amount equal to the higher of the
provisional benefits payable.
(5) If you are eligible for Supplemental Security Income payments,
including provisional payments, we will reduce your provisional
benefits under Sec. 404.408b if applicable.
(6) We will not reduce your provisional benefit, or the payable
benefit to other individuals entitled on an earnings record, under
Sec. 404.403, when your provisional benefit causes the total benefits
payable on the earnings record to exceed the family maximum.
(b) You cannot receive provisional cash benefits or Medicare a
second time under this section when--
(1) You request reinstatement under Sec. 404.1592c(a);
(2) You previously received provisional cash benefits or Medicare
under this section based upon a prior request for reinstatement filed
under Sec. 404.1592c(a); and
(3) Your requests under paragraphs (b)(1) and (b)(2) are for the
same previous disability entitlement referred to in Sec.
404.1592c(a)(2).
(4) Examples:
Example 1 --Mr. K files a request for reinstatement in April
2004. His disability benefit had previously terminated in January
2003. Since Mr. K meets other factors for possible reinstatement
(i.e., his prior entitlement was terminated within the last 60
months because he was engaging in substantial gainful activity), we
start paying him provisional benefits beginning April 2004 while we
determine whether he is disabled and whether his current
impairment(s) is the same as or related to the impairment(s) that we
used as the basis for the benefit that was terminated in January
2003. In July 2004 we determine that Mr. K cannot be reinstated
because he is not disabled under the medical improvement review
standard; therefore we stop his provisional benefits. Mr. K does not
request review of that determination. In January 2005 Mr. K again
requests reinstatement on the entitlement that terminated in January
2003. Since this request meets all the factors for possible
reinstatement, and his request is still within 60 months from
January 2003, we will make a new determination on whether he is
disabled and whether his current impairment(s) is the same as or
related to the impairment(s) that we used as the basis for the
benefit that was terminated in January 2003. Since the January 2005
request and the April 2004 request both request reinstatement on the
same entitlement that terminated in January 2003, and since we
already paid Mr. K provisional benefits based upon the April 2004
request, we will not pay additional provisional benefits on the
January 2005 request for reinstatement.
Example 2 --Assume the same facts as shown in Example 1 of this
section, with the addition of these facts. We approve Mr. K's
January 2005 request for reinstatement and start his reinstated
benefits beginning January 2005. Mr. K subsequently returns to work
and his benefits are again terminated due to engaging in substantial
gainful activity in January 2012. Mr. K must again stop work and
requests reinstatement in January 2015. Since Mr. K meets other
factors for possible reinstatement (i.e., his prior entitlement was
terminated within the last 60 months because he was engaging in
substantial gainful activity) we start paying him provisional
benefits beginning January 2015 while we determine whether he is
disabled and whether his current impairment(s) is the same as or
related to the impairment(s) that we used as the basis for the
benefit that was terminated in January 2012.
(c) We will not pay you a provisional benefit for a month when an
applicable nonpayment rule applies. Examples of when we will not pay a
benefit include, but are not limited to--
(1) If you are a prisoner under Sec. 404.468;
(2) If you have been removed/deported under Sec. 404.464; or
(3) If you are an alien outside the United States under Sec.
404.460.
(d) We will not pay you a provisional benefit for any month that is
after the earliest of the following months--
(1) The month we send you a notice of our determination on your
request for reinstatement;
(2) The month you do substantial gainful activity;
(3) The month before the month you attain full retirement age; or
(4) The fifth month following the month you requested expedited
reinstatement.
(e) You are not entitled to provisional benefits if--
(1) Prior to starting your provisional benefits, we determine that
you do not meet the requirements for reinstatement under Sec. Sec.
404.1592c(a); or
(2) We determine that your statements on your request for
reinstatement, made under Sec. 404.1592d(d)(2), are false.
(f) Determinations we make regarding your provisional benefits
under paragraphs (a) through (e) of this section are final and are not
subject to administrative and judicial review under subpart J of part
404.
(g) If you were previously overpaid benefits under title II or
title XVI of the Act, we will not recover the overpayment from your
provisional benefits unless you give us permission. We can recover
Medicare premiums you owe from your provisional benefits.
(h) If we determine you are not entitled to reinstated benefits,
provisional benefits we have already paid you under this section that
were made prior to the termination month under paragraph (d) of this
section will not be subject to recovery as an overpayment unless we
determine that you knew, or should have known, you did not meet the
requirements for reinstatement in Sec. 404.1592c. If we inadvertently
pay you provisional benefits when you are not entitled to them because
we have already made a determination described in paragraph (e) of this
section, they will be subject to recover as an overpayment under
subpart F of part 404.
Sec. 404.1592f How do we determine reinstated benefits?
(a) If you meet the requirements for reinstatement under Sec.
404.1592c(a), we will then consider in which month to reinstate your
entitlement. We will reinstate your entitlement with the earliest
month, in the 12-month period that ends with the month before you filed
your request for reinstatement, that you would have met all of the
requirements under Sec. 404.1592c(a) if you had filed your request for
reinstatement in that month. Otherwise, you will be entitled to
reinstated benefits beginning with the month in which you filed your
request for such benefits. We cannot reinstate your entitlement for any
month prior to January 2001.
(b) When your entitlement is reinstated, you are also entitled to
Medicare benefits under the provisions of 42 CFR part 406.
(c) We will compute your reinstated benefit amount and determine
benefits payable under the applicable paragraphs
[[Page 57144]]
of Sec. Sec. 404.201 through 404.480 with certain exceptions--
(1) We will reduce your reinstated benefit due in a month by the
amount of the provisional benefit we already paid you for that month.
If your provisional benefit paid for a month exceeds the reinstated
benefit, we will treat the difference as an overpayment under
Sec. Sec. 404.501 through 404.527.
(2) If you are reinstated on your own earnings record, we will
compute your primary insurance amount with the same date of onset we
used in your most recent period of disability on your earnings record.
(d) We will not pay you reinstated benefits for any months of
substantial gainful activity during your initial reinstatement period.
During the initial reinstatement period, the trial work period
provisions of Sec. 404.1592 and the reentitlement period provisions of
Sec. 404.1592a do not apply. The initial reinstatement period begins
with the month your reinstated benefits begin under paragraph (a) of
this section and ends when you have had 24 payable months of reinstated
benefits. We consider you to have a payable month for the purposes of
this paragraph when you do not do substantial gainful activity in that
month and when the non-payment provisions in subpart E of part 404 also
do not apply. If the amount of the provisional benefit already paid you
for a month equals or exceeds the amount of the reinstated benefit
payable for that month so that no additional payment is due, we will
consider that month a payable month. When we determine if you have done
substantial gainful activity in a month during the initial
reinstatement period, we will consider only your work in, or earnings
for, that month. We will not apply the unsuccessful work attempt
provisions of Sec. Sec. 404.1574(c) and 404.1575(d) or the averaging
of earnings provisions in Sec. 404.1574a.
(e) After you complete the 24-month initial reinstatement period as
indicated in paragraph (d) of this section, your subsequent work will
be evaluated under the trial work provisions in Sec. 404.1592 and then
the reentitlement period in Sec. 404.1592a.
(f) Your entitlement to reinstated benefits ends with the month
before the earliest of the following months--
(1) The month an applicable terminating event in Sec. 404.301
through 404.389 occurs;
(2) The month in which you reach retirement age;
(3) The third month following the month in which your disability
ceases; or
(4) The month in which you die.
(g) Determinations we make under Sec. Sec. 404.1592f are initial
determinations under Sec. 404.902 and subject to review under subpart
J of part 404.
(h) If we determine you are not entitled to reinstated benefits we
will consider your request filed under Sec. 404.1592c(a) your intent
to claim benefits under Sec. 404.630.
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart I--[Amended]
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5. The authority citation for subpart I of part 416 is revised to read
as follows:
Authority: Secs. 702(a)(5), 1611, 1614, 1619, 1631(a), (c),
(d)(1), and (p) and 1633 of the Social Security Act (42 U.S.C.
902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and (p), 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).
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6. Add new Sec. Sec. 416.999 through 416.999d to read as follows:
Sec. 416.999 What is expedited reinstatement?
The expedited reinstatement provision provides you another option
for regaining eligibility for benefits when we previously terminated
your eligibility for disability benefits due to your work activity. The
expedited reinstatement provision provides you the option of requesting
that your prior eligibility for disability benefits be reinstated,
rather than filing a new application for a new period of eligibility.
Since January 1, 2001, you can request to be reinstated to benefits if
you stop doing substantial gainful activity within 60 months of your
prior termination. You must not be able to do substantial gainful
activity because of your medical condition. Your current impairment
must be the same as or related to your prior impairment and you must be
disabled. To determine if you are disabled, we will use our medical
improvement review standard that we use in our continuing disability
review process. The advantage of using the medical improvement review
standard is that we will generally find that you are disabled unless
your impairment has improved so that you are able to work or unless an
exception under the medical improvement review standard process
applies. We explain the rules for expedited reinstatement in Sec. Sec.
416.999a through 416.999d.
Sec. 416.999a Who is eligible for expedited reinstatement?
(a) You can have your eligibility to benefits reinstated under
expedited reinstatement if--
(1) You were previously eligible for a benefit based on disability
or blindness as explained in Sec. 416.202;
(2) Your disability or blindness eligibility referred to in
paragraph (a)(1) of this section was terminated because of earned
income or a combination of earned and unearned income;
(3) You file your request for reinstatement timely under Sec.
416.999b; and
(4) In the month you file your request for reinstatement--
(i) You are not able to do substantial gainful activity because of
your medical condition, as determined under paragraph (c) of this
section,
(ii) Your current impairment is the same as or related to the
impairment that we used as the basis for your previous eligibility
referred to in paragraph (a)(2) of this section,
(iii) You are disabled or blind, as determined under the medical
improvement review standard in Sec. Sec. 416.994 or 416.994a, and
(iv) You meet the non-medical requirements for eligibility as
explained in Sec. 416.202.
(b) You are eligible for reinstatement if you are the spouse of an
individual who can be reinstated under Sec. 416.999a if--
(1) You were previously an eligible spouse of the individual;
(2) You meet the requirements for eligibility as explained in Sec.
416.202 except the requirement that you must file an application; and
(3) You request reinstatement.
(c) We will determine that you are not able to do substantial
gainful activity because of your medical condition, under paragraph
(a)(4)(i) of this section, when:
(1) You certify under Sec. 416.999b(e) that you are unable to do
substantial gainful activity because of your medical condition;
(2) You do not do substantial gainful activity in the month you
file your request for reinstatement; and
(3) We determine that you are disabled under paragraph (a)(4)(iii)
of this section.
Sec. 416.999b How do I request reinstatement?
(a) You must make your request for reinstatement in writing.
(b) You must have filed your request on or after January 1, 2001.
(c) You must provide the information we request so that we can
determine
[[Page 57145]]
whether you meet the eligibility requirements listed in Sec. 416.999a.
(d) We must receive your request within the consecutive 60-month
period that begins with the month in which your eligibility terminated
due to earned income, or a combination of earned and unearned income.
If we receive your request after the 60-month period, we can grant you
an extension if we determine you had good cause, under the standards
explained in Sec. 416.1411, for not filing the request timely.
(e) You must certify that you are disabled, that your current
impairment(s) is the same as or related to the impairment(s) that we
used as the basis for the eligibility you are requesting to be
reinstated, that you are unable to do substantial gainful activity
because of your medical condition, and that you meet the non-medical
requirements for eligibility for benefits.
Sec. 416.999c How do we determine provisional benefits?
(a) You may receive up to six consecutive months of provisional
cash benefits and Medicaid during the provisional benefit period, while
we determine whether we can reinstate your disability benefit
eligibility under Sec. 416.999a--
(1) We will pay you provisional benefits beginning with the month
after you file your request for reinstatement under Sec. 416.999a(a).
(2) If you are an eligible spouse, you can receive provisional
benefits with the month your spouse's provisional benefits begin.
(3) If you do not have an eligible spouse, we will pay you a
monthly provisional benefit amount equal to the monthly amount that
would be payable to an eligible individual under Sec. Sec. 416.401
through 416.435 with the same kind and amount of income as you have.
(4) If you have an eligible spouse, we will pay you and your spouse
a monthly provisional benefit amount equal to the monthly amount that
would be payable to an eligible individual and eligible spouse under
Sec. 416.401 through 416.435 with the same kind and amount of income
as you and your spouse have.
(5) Your provisional benefits will not include state supplementary
payments payable under Sec. Sec. 416.2001 through 416.2176.
(b) You cannot receive provisional cash benefits or Medicaid a
second time under this section when--
(1) You request reinstatement under Sec. 416.999a;
(2) You previously received provisional cash benefits or Medicaid
under this section based upon a prior request for reinstatement filed
under Sec. 416.999a(a); and
(3) Your requests under paragraphs (b)(1) and (b)(2) are for the
same previous disability eligibility referred to in Sec.
416.999a(a)(2) of this section.
(4) Examples:
Example 1 --Mr. K files a request for reinstatement in April
2004. His disability benefit had previously terminated in January
2003. Since Mr. K meets the other factors for possible reinstatement
(i.e., his prior eligibility was terminated within the last 60
months because of his work activity) we start paying him provisional
benefits beginning May 2004 while we determine whether he is
disabled and whether his current impairment(s) is the same as or
related to the impairment(s) that we used as the basis for the
benefit that was terminated in January 2003. In July 2004 we
determine that Mr. K cannot be reinstated because he is not disabled
under the medical improvement review standard; therefore we stop his
provisional benefits. Mr. K does not request review of the
determination. In January 2005 Mr. K again requests reinstatement on
the eligibility that terminated in January 2003. Since this request
again meets all the other factors for possible reinstatement
mentioned above, and his request is still within 60 months from
January 2003, we will make a new determination on whether he is
disabled and whether his current impairment(s) is the same as or
related to the impairment(s) that we used as the basis for the
benefit that was terminated in January 2003. Since the January 2005
request and the April 2004 request both request reinstatement on the
same benefit that terminated in January 2003, and since we already
paid Mr. K provisional benefits based upon the April 2004 request,
we will not pay additional provisional benefits on the January 2005
request for reinstatement.
Example 2 --Assume the same facts as shown in Example 1 of this
section, with the addition of these facts. We approve Mr. K's
January 2005 request for reinstatement and start his reinstated
benefits beginning February 2005. Mr. K subsequently returns to work
and his benefits are again terminated due to his work activity in
January 2008. Mr. K again stops work and requests reinstatement in
January 2010. Since Mr. K meets the other factors for possible
reinstatement (i.e., his prior eligibility was terminated within the
last 60 months because of his work activity) we start paying him
provisional benefits beginning February 2010 while we determine
whether he is disabled and whether his current impairment(s) is the
same as or related to the impairment(s) that we used as the basis
for the benefit that was terminated in January 2008.
(c) We will not pay you a provisional benefit for a month where you
are not eligible for a payment under Sec. Sec. 416.1322, 416.1323,
416.1325, 416.1327, 416.1329, 416.1330, 416.1334, and 416.1339.
(d) We will not pay you a provisional benefit for any month that is
after the earliest of either: the month we send you notice of our
determination on your request for reinstatement; or, the sixth month
following the month you requested expedited reinstatement.
(e) You are not eligible for provisional benefits if--
(1) Prior to starting your provisional benefits we determine that
you do not meet the requirements for reinstatement under Sec. Sec.
416.999a(a); or
(2) We determine that your statements on your request for
reinstatement, made under Sec. 416.999b(d)(2), are false.
(f) Determinations we make regarding your provisional benefits
under paragraphs (a) through (e) of this section are final and are not
subject to administrative and judicial review under subpart N of part
416.
(g) If you were previously overpaid benefits under title II or
title XVI of the Act, we will not recover the overpayment from your
provisional benefits unless you give us permission.
(h) If we determine you are not eligible to receive reinstated
benefits, provisional benefits we have already paid you under this
section that were made prior to the termination month under paragraph
(d) of this section will not be subject to recovery as an overpayment
unless we determine that you knew, or should have known, you did not
meet the requirements for reinstatement in Sec. 416.999a. If we
inadvertently pay you provisional benefits when you are not entitled to
them because we have already made a determination described in
paragraph (e) of this section, they will be subject to recover as an
overpayment under subpart E of part 416.
Sec. 416.999d How do we determine reinstated benefits?
(a) If you meet the requirements for reinstatement under Sec.
416.999a(a), we will reinstate your benefits with the month after the
month you filed your request for reinstatement. We cannot reinstate
your eligibility for any month prior to February 2001.
(b) We will compute your reinstated benefit amount and determine
benefits payable under the applicable paragraphs in Sec. Sec. 416.401
through 416.435. We will reduce your reinstated benefit due in a month
by a provisional benefit we already paid you for that month. If your
provisional benefit paid for a month equals or exceeds the reinstated
benefit due, we will treat the difference as an overpayment under Sec.
416.536.
(c) Once you have been reinstated under Sec. 416.999a you cannot
be reinstated again until you have completed a 24-month initial
reinstatement period. Your initial reinstatement period begins with the
[[Page 57146]]
month your reinstated benefits begin under paragraph (a) of this
section and ends when you have had 24 payable months of reinstated
benefits. We consider you to have a payable month for the purposes of
this paragraph when you are due a cash benefit of any amount for the
month based upon our normal computation and payment rules in Sec.
416.401 through Sec. 416.435 or if you are considered to be receiving
SSI benefits in a month under section 1619(b) of the Social Security
Act. If your entire benefit payment due you for a month is adjusted for
recovery of an overpayment under Sec. 416.570 and Sec. 416.571 or if
the amount of the provisional benefit already paid you for a month
exceeds the amount of the reinstated benefit payable for that month so
that no additional payment is due, we will consider the month a payable
month.
(d) Your eligibility for reinstated benefits ends with the month
preceding the earliest of the following months--
(1) The month an applicable terminating event in Sec. Sec.
416.1331 through 416.1339 occurs;
(2) The third month following the month in which your disability
ceases; or
(3) The month in which you die.
(e) Determinations we make under this section are initial
determinations under Sec. 416.1402 and are subject to review under
subpart N of part 416.
(f) If we determine you are not eligible for reinstated benefits,
we will consider your request filed under Sec. 416.999a(a) your intent
to claim benefits under Sec. 416.340.
Subpart N--[Amended]
0
7. The authority citation for subpart N of part 416 continues to read
as follows:
Authority: Secs. 702(a)(5), 1631, and 1633 of the Social
Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b).
0
8. Amend Sec. 416.1403 by revising paragraphs (a) (19) and (20),
adding paragraph (a) (21), and revising paragraphs (b)(1) and (2) to
read as follows:
Sec. 416.1403 Administrative actions that are not initial
determinations.
(a) * * *
(19) Determining whether we will refer your overpayment to the
Department of the Treasury for collection by offset against Federal
payments due you (see Sec. Sec. 416.590 and 422.310 of this chapter);
(20) Determining whether we will order your employer to withhold
from your disposable pay to collect an overpayment you received under
title XVI of the Social Security Act (see part 422, subpart E, of this
chapter); and
(21) Determining when provisional benefits are payable, the amount
of the provisional benefit payable, and when provisional benefits
terminate (see Sec. 416.999c).
(b) * * *
(1) If you receive an emergency advance payment; presumptive
disability or presumptive blindness payment, or provisional payment, we
will provide a notice explaining the nature and conditions of the
payments.
(2) If you receive presumptive disability or presumptive blindness
payments, or provisional payments, we shall send you a notice when
those payments are exhausted.
* * * * *
[FR Doc. 05-19529 Filed 9-29-05; 8:45 am]
BILLING CODE 4191-02-P