TN 13 (07-09)

A. Background

Section 527, Division G of the Consolidated Appropriations Act of 2008 (known as the “Ensign Amendment”), prohibited SSA from using any fiscal year 2008 (FY 08) funding under Title II to process claims for credit for quarters of coverage (QC) based on work performed under a Social Security Number (SSN) that did not belong to the claimant in cases where the SSN was used by the claimant with the intent to deceive. This was an offense prohibited under Section 208(a) (7)(B) of the Social Security Act.

For FY 2009, this was modified by Section 522, title V, Division F of the Omnibus Appropriations Act of 2009, P.L. 111-8. This section prohibits the Commissioner from using funds appropriated in this Act to process any claim for credit for a QC based on work performed under a SSN that is not the claimant's number and the performance of such work under such number formed the basis for a conviction of the claimant of a violation of section 208(a)(6) or (7) of the Social Security Act. The "Ensign Amendment" for FY 2009 applies to claims filed on or after March 11, 2009.

This new language, while similar to the previous language, requires that the applicant be convicted under the Social Security Act of certain SSN-related offenses – it is not necessary to make a determination of “intent to deceive” regarding use of an SSN. We will continue to refer to the language as the “Ensign Amendment.”

This requirement remains in effect until further notice. The FY 09 “Ensign Amendment” provisions have been included in every appropriations funding bill since FY 09. Any reference to the FY 09 Ensign Amendment Provisions incorporates the Ensign Amendment Provisions in the Appropriations Acts for all subsequent years.

B. Definitions

The following definitions are applicable when applying the provisions of the “Ensign Amendment”:

1. “Ensign Amendment”

The “Ensign Amendment” refers to the section of the FY 09 Appropriations Bill that prohibits SSA from using government funds under Title II to process claims for quarters of coverage based upon work performed under a SSN that was not the claimant’s valid SSN when such work has formed the basis for a conviction of a violation of section 208(a) (6) or (7) of the Social Security Act.

NOTE: Section 208(a) (6) makes it illegal for an individual to knowingly, and with intent to deceive, furnish false information with respect to wage records. Section 208(a)(7) makes it illegal for an individual to obtain Federally-funded benefits, including Title II benefits, or anything of value from any person, by using, with intent to deceive, either an SSN that was obtained with false information or the SSN of another individual. Section 208(a)(7) includes additional prohibitions. For more information, see: http://policynet.ba.ssa.gov/repository/ssact/title02/0208.htm

2. Individual Taxpayer Identification Number (ITIN)

An Individual Taxpayer Identification Number (ITIN) is a tax processing number issued by the Internal Revenue Service (IRS). It is a nine-digit number that always begins with the number 9 and has a 7 or 8 in the fourth digit, example 9XX-7X-XXXX. IRS issues ITINs to individuals who are required to have a U.S. taxpayer identification number but who do not have and are not eligible to obtain a SSN from the Social Security Administration (SSA).

Notes:

• ITINs are issued regardless of immigration status because both resident and nonresident aliens may have U.S. tax return and payment responsibilities under the Internal Revenue Code. Individuals must have a filing requirement and file a valid federal income tax return to receive an ITIN, unless they meet an exception.

• Wage and tax data reported with an ITIN by an employer to SSA is placed into suspense.

• IRS does transmit to SSA self employment income (SEI) data when the individual uses an ITIN. SSA transfers any SEI data received from IRS with an ITIN to the suspense file.

3. Basis For Conviction

"Basis for conviction" exists when the worker has been convicted for using a SSN in employment that was not assigned to him or to her in violation of section 208 (a) (6) or (7) of the Social Security Act. (See RS 01404.252B).

The Office of Inspector General’s (OIG's) Office of Investigations investigates allegations of fraud and presents the facts to the applicable United States Attorney. The United States Attorney determines whether to prosecute.

If the worker has been convicted of using, for employment purposes, a SSN that was not assigned to him or to her the earnings record cannot be corrected for a Title II claim (See RS 01404.252B.).

The court case and subsequent conviction may result from another federal agency indicting the worker. The "Ensign" provisions are not limited to cases the OIG investigates.

NOTE: The statutory language regarding a conviction is in the past tense ("has formed the basis for a conviction"). There is no requirement for a waiting period to see if there will be a conviction in the future, with the exception of the 15 day waiting period while the regional general counsel offices query the PACER database (see RS 01404.254D.). If the NH has not been convicted of a violation of section 208 (a) (6) or (7) of the Social Security Act for using a SSN in employment that was not assigned to him or to her, then the earnings under the incorrect SSN can be credited or corrected.