Social Security has withdrawn the 1990 ruling that governed how rental subsidies count against SSI, and the withdrawal changes nothing for anyone
Nothing changes. That is the entire content of a notice the Social Security Administration filed on Friday morning, and it is worth saying first, because a withdrawn ruling usually means somebody has lost something.
The agency is rescinding Acquiescence Ruling 90-2(2), published on 16 July 1990 at 55 FR 28947. An acquiescence ruling is what Social Security issues when a federal appeals court holds against its reading of the statute or its regulations and the government does not seek further review. Here the court was the Second Circuit and the case was Ruppert v. Bowen, 871 F.2d 1172, decided in 1989.
What Ruppert was about
The subject is in-kind support and maintenance, the doctrine under 20 CFR 416.1130 that treats free or discounted housing as income when Supplemental Security Income is calculated. As the regulation then read, somebody paying rent at or above current market rental value under a business arrangement was not charged with in-kind support at all.
The Second Circuit held that the agency had to find an actual economic benefit before charging anyone, and that the benefit could not be presumed from the gap between market rent and rent actually paid. AR 90-2(2) turned that into a working instruction: where the rent paid equals or exceeds the presumed maximum value, there is no rental subsidy.
Why it is obsolete
On 11 April 2024 the agency published a final rule expanding the rental subsidy policy, at 89 FR 25507, effective 30 September 2024. It rewrote 20 CFR 416.1130 to say what the acquiescence ruling said, and to say it everywhere rather than in one circuit. Rent at or above the presumed maximum value is no subsidy. Below it, the agency imputes the difference between the rent required and either the presumed maximum value or current market rental value, whichever is less.
The regulation the Second Circuit was construing no longer exists in the form it construed, and 20 CFR 416.1485(e)(4) lets the agency retire a ruling once that happens. Mark Steffensen, the general counsel, signed the notice.
