SUPPLEMENTARY INFORMATION:

In accordance with 20 CFR 402.160(b)(2) and 416.1485(e)(4), the Commissioner of Social Security gives notice of the rescission of AR 90-2(2).

When we determine that a United States Court of Appeals holding conflicts with our interpretation of the Act or regulations, and the Government does not seek further judicial review, we will issue an AR.^[1] We may rescind an AR as obsolete if we subsequently clarify, modify, or revoke the regulation that was the subject of the circuit court holding that we determined conflicted with our interpretation of the Act or regulations.^[2]

On July 16, 1990, we published AR 90-2(2) to reflect the Second Circuit's holding in Ruppert v. Bowen, 871 F.2d 1172 (2d Cir. 1989).^[3] In Ruppert, the Second Circuit addressed an aspect of our in-kind support and maintenance (ISM) rules outlined in 20 CFR 416.1130, under which we considered whether an individual was receiving ISM in the form of room or rent (sometimes referred to as our rental subsidy policy). Under that regulation at the time, we would not consider an individual to be receiving ISM if they paid the monthly required rent charged under a “business arrangement” in which the rent equaled or exceeded the current market rental value. In Ruppert, the Second Circuit held that we must determine whether an individual receives an “actual economic benefit” from a rental subsidy before charging the individual with in-kind support and maintenance (ISM); and that economic benefit could not be presumed based on the difference between current market rental value and the actual amount of rent paid. To apply the circuit court's holding, AR 90-2(2) instructed that if the actual amount of rent paid equals or exceeds the presumed maximum value (PMV) described in 20 CFR 416.1140, we would not consider there to be a rental subsidy for purposes of ISM.^[4]

On April 11, 2024, we published in the Federal Register the final rule Expansion of the Rental Subsidy Policy for Supplemental Security Income (SSI) Applicants and Recipients.^[5] We revised 20 CFR 416.1130 to accord with Ruppert and the policy in AR 90-2(2): an individual does not receive (countable) ISM in the form of a rental subsidy if the amount of monthly required rent to be paid equals or exceeds the PMV; and, if the required amount of rent is less than the PMV, we will impute as ISM the difference between the required amount of rent and either the PMV or the current market rental value, whichever is less.^[6]

Because the regulation that was the subject of the Ruppert AR has been revised effective September 30, 2024, AR 90-2(2) is now obsolete. Accordingly, we are rescinding AR 90-2(2).^[7]

91 FR 55964