(PPS-94)

SSR 83-21

SSR 83-21: TITLE II: PERSON CONVICTED OF A FELONY

PURPOSE: To state the policy and describe the provisions of the law regarding payment of Social Security benefits to certain imprisoned felons and eligibility for benefits based on disability when an impairment arises or is aggravated in connection with the commission of a felony or while the individual is imprisoned following conviction for a felony.

CITATIONS (AUTHORITY): Sections 5(a), (b), and (c) of Public Law (P.L.) 96-473; sections 202(d), 216(i), 223(d) and 223(f) of the Social Security Act, as amended.

INTRODUCTION: P.L. 96-473 contains provisions that preclude consideration of felony-related impairments and confinement-related impairments (for certain purposes) in title II disability determinations or decisions for individuals convicted of a felony which was committed after October 19, 1980. It also provides for the suspension of benefits for disabled workers and childhood disability beneficiaries who are incarcerated because of a felony conviction. The suspension provision applies without regard to the date on which the felony was committed and is effective with respect to benefits payable for months beginning on or after October 1, 1980. Another provision stipulates that an individual will not be considered a "full-time student" while confined for conviction of a felony which was committed after October 19, 1980.

This Program Policy Statement (PPS) explains in detail the provisions of the law and how these provisions are to be applied. More specifically, the PPS describes the basic provisions, defines applicable terms, discusses how cases affected by the provisions are identified, provides guides for determining if the individual is disabled for program purposes, and whether benefits are payable. It also explains how these provisions relate to the continuing disability area.

POLICY STATEMENT:

Basic Provisions

The law (P.L. 96-473) provides that title II benefits and determinations of disability for prisoners and persons convicted of felonies will be restricted as follows:

1. Any physical or mental impairment which arises or is aggravated (but only to the extent of the aggravation) in connection with the commission of an offense after October 19, 1980, which constitutes a felony under applicable law, and for which the individual is subsequently convicted, shall not be considered in determining whether the individual is under a disability. This exclusion applies regardless of whether the individual is incarcerated pursuant to conviction. (The impairment or aggravation of an impairment must be excluded for the lifetime of the individual.)

2. Any physical or mental impairment that arises or is aggravated (but only to the extent of the aggravation) in connection with the individual's confinement in a jail, prison, or other penal institution or correctional facility pursuant to such individual's conviction of an offense committed after October 19, 1980, constituting a felony under applicable law, shall not be considered in determining whether such individual is under a disability for purposes of benefits payable for any month during which such individual is so confined.

NOTE: The foregoing provisions are applicable to title II claimants: applicants for disability insurance benefits (DIB); for childhood disability benefits (CDB); or for disabled widows, widowers, or surviving divorced spouses benefits (DWB).

3. No monthly benefits shall be paid by reason of being under a disability to any individual for any month during which such individual is confined in a jail, prison, or other penal institution or correctional facility pursuant to conviction for an offense consulting a felony under applicable law, unless the prisoner is actively and satisfactorily participating in a rehabilitation program which has been specifically approved for that prisoner by a court of law, and which as determined by the Secretary is expected to result in the individual being able to engage in substantial gainful activity (SGA) upon release and within a reasonable time. This provision applies to a felony which was committed at any time and is effective for benefits payable for months beginning on or after October 1, 1980; it applies only to DIB and CDB (not DWB) claimants and beneficiaries.

When a prisoner's benefits are suspended, payment of auxiliary benefits will continue to be made (as though the prisoner were receiving benefits) to others who are entitled on the basis of the wages and self- employment income of the prisoner.

4. An individual shall not be considered a "full-time student" while that individual is confined in a jail, prison, or other penal institution or correctional facility, pursuant to conviction of an offense which constituted a felony under applicable law. This provision is effective with respect to felonies committed by student claimants or beneficiaries after October 19, 1980.

Definition of Terms

Felony -- An offense will be considered a felony if:

1. It is a felony under applicable law; or

2. In a jurisdiction which does not classify any crime as a felony, it is an offense punishable by death or imprisonment for a term exceeding 1 year.

Confinement in a Jail, Prison, or Other Penal Institution or Correctional Facility -- in general, jail, prison, or other penal institution or correctional facility is a facility which is under the control and jurisdiction of the agency in charge of the penal system or in which convicted criminals can be incarcerated. Confinement in such a facility continues as long as the individual is under a sentence of confinement and has not been released due to parole or pardon. An individual is considered confined even though temporarily or intermittently outside of the facility (e.g., on work release, attending school or hospitalized). Where are individual escapes from the facility, he or she is still considered to be confined for suspension of benefit purposes since the individual is still under sentence.

Example:

A disabled individual whose prison sentence has not ended is released from prison pending reassignment to a hospital and is currently residing at home. Because there has been no action by a court or other responsible authority to end the sentence of confinement (e.g., suspending or overturning the sentence, granting parole, or granting a pardon), the individual is still considered confined. In addition, the hospital in this case is a facility which is used to house convicted criminals. Therefore, the hospital where the prisoner is later admitted would be considered a penal institution or correctional facility even though it is not operated by the correctional authorities.

Conviction -- The status of a criminal case at the time of adjudication of the claim must be determined. Unless the claimant has actually been convicted of a felony committed after October 19, 1980, or for suspension cases is or was confined to a penal institution for conviction of a felony committed at any time, the prisoner provisions do not apply.

A grand jury indictment or any official act by a law enforcement agency merely charging an individual with a felony cannot serve to delay entitlement to or payment of benefits. However, if an individual has been convicted of a felony but the conviction is under appeal, the prisoner provisions do apply.

Identification of Cases Affected By These Provisions

The district office (DO) will identify cases that may be affected by these provisions when, in the course of their development, they are able to determine that the claimant has been charged with or convicted of a felony or has an impairment connected with confinement. They will prepare a Report of Contact containing information regarding the status of any criminal case (e.g., trial pending, conviction obtained, etc.).

The DO may not be able to determine that a felony has been committed in all instances. However,t he history in the medical evidence will ordinarily reveal the circumstances under which an impairment arose or was aggravated. The Disability Determination Services (DDS), and administrative law judge (ALJ), and the Appeals Council (AC) must be alert to this, and identify any claims not identified by the DO where, in the course of reviewing the evidence, there is an indication that an impairment was connected with the commission of a crime or confinement. When such a case is identified, contact the DO for assistance. The DO will then find out whether a felony was committed, the date of the offense and the status of the criminal case, and will forward a Report of Contact to the DDS, ALJ, or AC containing this information for determination as to whether any felony-related or confinement-related impairment is involved.

When a potential prisoner case is identified, but the trial is pending, a determination or decision will be made in the customary manner considering all impairments. The DO will diary the case, and if the claimant is convicted at the trial, the claim will be returned to the DDS, ALJ, or AC, as appropriate, to determine if a felony-related impairment is involved and to consider whether reopening and reversal is necessary.

If a reopening and reversal to a denial is necessary, the beneficiary must be given written notice of the proposed action. A reopening and reversal to a denial is necessary where a felony- related impairment must be excluded from consideration and its exclusion results in a determination that the individual is not disabled.

The DO will also diary a case in which an appeal is pending. Where on appeal a conviction is overturned, a reopening and reversal to an allowance may be permitted.

The specific responsibilities for determinations or decisions made at the DDS, ALJ, or AC levels are explained in the following sections.

Individual Has Been Convicted of a Felony Committed After
October 19, 1980 -- Felony-Related Impairments

When an individual has been convicted of a felony committed after October 19, 1980, determine if the individual is disabled considering all impairments. In all cases where it is determined that disability does exist, any impairment(s) that arose or was aggravated (but only to the extent of the aggravation) during the commission of the felony must be identified, and an assessment of disability made based on the remaining evidence alone, disregarding the felony-related impairment. The options to be considered are listed below. (See below for exclusion of confinement-related impairments in cases where conviction of the felony results in confinement.)

Not Disabled -- All Impairments Considered

When, after considering all impairments, the individual is not disabled, prepare a formal denial determination or decision. The following, or a similar, statement will be included in the rationale:

"The impairment(s) is not disabling; no effect has been made to isolate any felony-related impairments."

Disabled -- All Impairments Considered

When the total medical evidence indicates an individual is disabled, the following alternatives must be considered:

1. Impairment Not Felony-Related

When a felony conviction is involved, but there is no evidence that any impairment arose or was aggravated in association with the commission of this felony, prepare a determination or decision of allowance in the customary manner, and include the following, or a similar, statement in the rationale:

"Disabling impairment is not felony-related."

2. Impairment Felony-Related

When any impairment is determined to have arisen "in connection with" the commission of a felony after October 19, 1980 for which the individual is convicted, or if a pre-existing impairment(s) was aggravated "in connection with" the commission of the felony after October 19, 1980, consideration of the felony-related impairment(s) and resulting functional limitations in the evaluation of disability will be excluded. The exclusion applies for the life of the individual.

It is not necessary that there be a causative connection between the commission of the felony and the disabling condition, but it must be closely related to, or associated with the commission of the offense. In general, the disabling condition (the impairment or the aggravation a pre- existing impairment) must have occurred at a time and location that is near (i.e., close to the time and place) to the felony. Ordinarily, the decision as to this issue will be obvious.

Most impairments that can be identified as arising in connection with a felony will be of a traumatic nature, such as an impairment resulting from a gunshot wound. However, some nontraumatic impairments may arise in connection with the commission of a felony, since the law does not require that there must be a causative relationship between the commission of the felony and the impairment.

a. Where the impairments that are unconnected with the felony are in themselves sufficiently severe to establish disability, an allowance is warranted. This includes establishing disability on the basis of a combination of impairments. The favorable determination or decision must not include any impairment that arose, or any aggravation (of a pre-existing condition) that occurred, in connection with the commission of the felony. Vocational factors apply in tel regular manner for DIB and CDB cases.

When an allowance determination or decision can be prepared, the following statement will be included in the rationale:

"Disabling impairment is not felony-related."

b. When disability cannot be established without including an impairment associated with the commission of the felony, a determination or decision of denial will be prepared and the following statement will be included in the rational:

"Disabling impairment is felony-related."

Individual Convicted and Confined for a Felony Committed Affaire
October 19, 1980 -- Confinement-Related and
Felony-Related Impairments

When a claimant has been convicted of a felony and confined, all of the medical evidence, including that for any impairment which arose or was aggravated during confinement for the conviction of the felony (as well as any felony-related impairments) must be evaluated and a determination or decision prepared.

Not Disabled -- All Impairments Considered

When, considering all impairments, the individual is not disabled, a formal denial determination or decision will be prepared. The following, or a similar, statement will be included in the rationale:

"The impairment(s) is not disabling; no effort has been made to isolate any felony-related or confinement- related impairments."

Disabled -- All Impairments Considered

It must first be determined if any impairment arose, or if any pre-existing impairment was aggravated, "in connection with" the commission of the felony (see above). If after exclusion of any felony-related impairment an allowance is still warranted by the evidence, the medical evidence must then be further considered to determine the significance with regard to the determination of disability of any impairment that arose or was aggravated (but only to the extent of the aggravation) in connection with confinement in a jail, prison, or other penal institution or correctional facility.

An impairment is considered to have arisen in connection with confinement, even though the impairment is not attributable to the confinement when it first occurs during confinement (i.e., the impairment is diagnosed to have begun during confinement and there is no evidence showing that signs and symptoms occurred prior to confinement). Similarly, medical conditions that began prior to confinement and then increase in severity during confinement are considered to have been "aggravated" in connection with confinement, regardless of whether the course of the condition was altered by the confinement.

1. When disability can be established based solely on impairment(s) not associated with the commission of the felony or with confinement, the following, or a similar, statement will be included in the rationale:

"The disabling impairment is not felony-related or confinement-related."

2. When disability cannot be established without considering an impairment associated with confinement, a disability freeze will be established for a DIB claimant (only to protect future benefit rights). The following, or a similar, statement will be included in the rationale:

"Determination of allowance justified only when consideration is given to impairment associated with confinement. FREEZE ONLY -- Not under a disability for cash benefit purposes during any month confined."

The possibility of a freeze does not apply to CDB and DWB claimants. If disability cannot be established without consideration of an impairment associated with confinement, a determination or decision of denial will be prepared and the following, or a similar, statement will be included in the rationale:

"Disabling impairment is felony-related."

Although a confinement-related impairment may not be considered in determining disability for benefits payable during confinement, it may be considered for benefit purposes after the individual has been released from prison if the individual files an application for DIB, CDB or DWB at that time. Entitlement to benefits based on a new application could begin as early as the first full month the individual is no longer confined, provided the individual is determined to be under a disability after release from prison.

Confinement for Conviction of a Felony Committed at Any Time

Benefits are not payable for disabled workers and adults disabled since childhood (this provision does not apply to DWB claimants) for any month in which the individual is confined in a jail, prison, or other penal institution or correctional facility due to conviction of a felony, unless the individual is participating in a court-approved rehabilitation program that is expected to result in that individual being able to engage in SGA upon release and within a reasonable time. This nonpayment provision applies regardless of when the felony occurred and is effective for benefits payable for months beginning on or after October 1, 1980. When a DIB or CDB allowance is for a person who is convicted (or confined following conviction) of a felony that was committed on or before October 19, 1980, the following, or a similar, remark will be entered in the rationale:

"Benefits may not be payable to the disabled individual for any month confined,"

(This entry is also required when a DIB or CDB allowance is for a person who has been convicted (or convicted and confined) for a felony committed after October 19, 1980.)

The possible exclusion from suspension related to participation in a rehabilitation program will be acted upon by the DO.

The Determination or Decision

A rationale is required in all "prisoner" cases where the individual has been convicted (or convicted and confined) for a felony committed after October 19, 1980. In these cases, the rationale must clearly show if an impairment(s) arose or was aggravated (and if aggravated, the extent of the aggravation) in connection with the commission of the felony, or in connection with confinement pursuant to conviction of the felony. It must identify any such impairment(s) and describe the weight attributed to the felony-related impairment(s), the confinement- related impairment(s), and the remaining impairment(s) which are not excluded from consideration. The rationale must reflect how consideration of any felony-related or confinement-related impairment affected the disability decision.

Continuing Disability Case Involving
Individual Convicted of a Felony

If a continuing disability case has been identified as a prisoner case, or if during a continuing disability investigation (CDI) it is discovered for the first time that an individual is confined or that the exclusions in the prisoner provisions may be applicable, the policy described above is pertinent and should be applied. A CDI is necessary when a medical diary matures, a case is selected for periodic or sample review, or an event raises a disability issue even though the beneficiary has been placed in nonpay status because of confinement. Some prisoners may be eligible for payment if they are participating in a court- approved rehabilitation program.

Permanent Disregard of Felony-Related Impairments

The section of the law which permanently precludes consideration of felony-related impairments in determining whether an individual is disabled applies to CDI cases as well as to initial claims situations if the beneficiary is convicted of a felony committed after October 19, 1980. For example, if an individual determined to be under a disability because of a respiratory condition and scheduled for a reexamination subsequently is shot and paralyzed during the commission of a felony after October 19, 1980, and is convicted of the felony, a cessation is, nonetheless, appropriate if evidence secured during a CDI indicates the respiratory condition is not disabling. If the respiratory condition remains disabling, a continuance is in order. However, no consideration is to be given to the individual's paralysis when evaluating disability.

Temporary Disregard of Impairments Connected With Confinement

If, during a CDI, evidence shows the original impairment is not disabling but while confined for conviction of a felony committed after October 19, 1980, an individual developed another impairment, or an aggravation (but only tot he extent of the aggravation) of a condition existing prior to confinement, severe enough to prevent substantial gainful work, a period of disability will be continued on the basis of the new impairment(s), but for freeze purposes only. The law provides that benefits are payable to such an individual, if still disabled, upon release from confinement and providing a new application is filed. Any continuing disability issues (e.g., medical reexamination diary, report of medical improvement, etc.) will be resolved before benefits are paid.

NOTE: Freeze provisions are applicable only to DIB. CDB and DWB cases will be terminate. However, if the CDB or DWB claimant is no longer confined, a confinement-related impairment can be considered to establish disability when a new application is filed.

Suspension of Benefits

The provisions of the legislation which require suspension of benefit payments to DIB or CDB beneficiaries, while confined for conviction of a felony, apply without regard to the date on which the felony was committed or to whether impairments are felony-related or confinement-related. If the possibility of confinement first comes to light during a CDI, the DDS, ALJ, or AC will notify the DO of an individual in pay status and request documentation. The disability investigation and the suspension of benefit payments by the DO are separate actions. Thus, the CDI will proceed and the DO will independently proceed with the suspension action, if appropriate.

Disability Determinations or Decisions

A CDI will be conducted in the customary manner taking into account the prisoner provisions where appropriate. Evidence will be secured and evaluated, and a determination or decision made as to whether disability is continuing.

EFFECTIVE DATE: The policy explained herein was effective on October 19, 1980, the date P.L. 96-473 was enacted.

CROSS-REFERENCES: Program Operations Manual System, sections DI 2360-2366 and DI 2835.

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