SSA IMPLEMENTS NEW “FUGITIVE FELON” PROVISIONS

New “fugitive felon” provisions of the Social Security Protection Act of 2004 (P.L. 108-208) went into effect on January 1, 2005.

New "fugitive felon" provisions of the Social Security Protection Act of 2004 (P.L. 108-208) went into effect on January 1, 2005. At the end of January, the Social Security Administration conducted a video training on the new provisions and issued new POMS to implement § 203, which extends the so called "fugitive felon" penalty to all Title II benefits and establishes limited good cause exceptions for both Social Security and SSI benefits. POMS SI 00530 & GN 02613. The penalty provision was originally enacted in the 1996 welfare reform legislation and makes a person ineligible for benefits for any period when the person is 1) "fleeing to avoid prosecution" for a felony, 2) "fleeing to avoid ... custody or confinement after conviction" for a felony, or 3) "violating a condition of probation or parole" for any offense. 42 U.S.C. § 1382(e)(4)(A). The 1996 legislation applied this penalty provision to SSI, but not to Title II and contained no exceptions.

The initial impact of the new legislation has been to cause a lull in "fugitive felon" suspensions as SSA gears up to implement the new provisions. However, this lull is certain to be short-lived with the pace of SSI suspensions resuming and Title II suspensions beginning very shortly.

Good Cause Exceptions - Last year’s legislation contained a mandatory and a discretionary good cause exception, each of which is applicable in both SSI and Title II. Under the legislation the mandatory good cause exception applies when 1) a court "has found the person not guilty ... , dismissed the charges ... , vacated the warrant for arrest ... , or issued any similar exonerating order (or taken similar exonerating action) or 2) "the person was erroneously implicated ... by reason of identity fraud." 42 U.S.C. §§ 402(x)(1)(B)(iii) & 1382(e)(4)(B).

The statute also authorized the Commissioner, "for good cause shown, based on mitigating circumstances" to make an exception in any case, provided both the underlying offense and any probation or parole violation are nonviolent and not drug-related.. 42 U.S.C. §§ 402(x)(1)(B)(iv) & 1382(e)(4)(C). However, the Commissioner has chosen to interpret this discretionary good cause exception very narrowly and has established onerous documentation requirements as well.

The POMS provides two options for discretionary good cause. POMS SI 00530.015B2 & GN 02613.025B2. In order to qualify for Option A, the following requirements must be met: 1) the underlying offense or probation or parole violation must be nonviolent and not drug related, 2) the individual must not have been convicted of or pled guilty to any subsequent felony and 3) the law enforcement agency reports that it will not extradite or is unwilling to act on the warrant. In order to qualify for Option B the individual must satisfy requirements 1 & 2 of Option A and, in addition, 3) the warrant must be the only existing warrant, 4) the warrant must have been issued at least 10 years prior to the date SSA learned of it and 5) the individual must be incapable of managing payments, be legally incompetent, or have a representative payee or reside in a long-term care facility, such as a nursing home or mental treatment/care facility.

Prior to making any determination to suspend benefits or deny an initial claim, SSA will first establish whether, based on the information it has in its possession, the individual qualifies for one of the good cause exceptions. If good cause is determined on this basis, the individual will not be notified and benefits will continue uninterrupted. If good cause cannot be established in this manner, then SSA will begin the suspension process. It should be noted that there are significant differences in the suspension process between SSI and Title II and that in each case there is a significant departure from the usual suspension procedure.

Title II Suspensions

- If SSA is not able to establish good cause from its own records an advance notice before suspension is sent to the beneficiary. POMS GN 02613.010B. This notice will explain that unless the individual can establish good cause a further notice will be sent and benefits will be suspended. The advance notice will set forth the good cause criteria, will state which of the requisites for good cause have been satisfied based on information SSA has in its possession and which elements remain to be established. POMS GN 02613.960. It will also state that if the beneficiary requests good cause within 30 days, then the beneficiary will have 90 days from the date of making the request to establish good cause and that benefits will continue uninterrupted during that period. POMS GN 02613.450C. The procedure contemplates that a person can request good cause even though the person may not meet the requirements for good cause at the time of making the request. The purpose of the 90 day period is to enable the individual to bring about the conditions (e.g., get the warrant vacated) or obtain the documentation necessary to establish good cause.

Evidentiary Requirements for Good Cause - In order to establish that one was the victim of identity fraud, the POMS requires that the individual present an official document from the court or warrant issuing agency, signed by a person with knowledge of the facts, stating that the warrant was erroneously issued in the individual’s name. POMS 02613.450B4. In order to establish that law enforcement will not extradite or is unwilling to arrest the individual, the individual must present an official document from the warrant issuing law enforcement agency to that effect. Such documentation will often prove exceedingly difficult, if not impossible, for most lawyers to obtain. Nonetheless, the POMS contains no recognition of any responsibility the agency might have under § 504 of the Rehabilitation Act to assist unrepresented claimants with severe mental impairments in their efforts to obtain such documentation.

If the beneficiary does not request good cause within the 30 day period after the advance notice of suspension, or if good cause is denied, then a notice of suspension with notice of appeal rights will issue. It must be remembered that in Title II cases, unlike SSI, there is no right to continued benefits pending a decision on reconsideration. It should also be remembered that for Title II suspensions there is only one method of reconsideration and that is case review. The SSI options of formal conference or informal conference do not exist for Title II.

Practice Tip

- In T II cases, do not immediately request good cause upon receipt of the advance notice. It is better to wait until the 30 day period has nearly expired since the 90 day period for continued benefits pending the establishment of good cause does not begin to run until good cause is requested. This is important in T II cases since it is usually going to be difficult to meet the good cause requirements within the 90 day period. Of course, although one should not immediately request good cause upon receipt of the advance notice, one should immediately make efforts to obtain information and get the warrant vacated as well as to develop an ultimate strategy for challenging the determination that the individual is fleeing to avoid prosecution, etc.

How much time do I have to request good cause in a T II case? Mandatory good cause may be requested at any time and is not subject to the rules of administrative finality. Discretionary good cause, on the other hand, must be requested within 12 months of the Advance Notice Before Suspension.

Will my Title II benefits be terminated? Unlike SSI benefits which are terminated after 12 consecutive months of suspension, Title II benefits can continue in suspense status indefinitely. Thus an SSDI beneficiary who has been suspended for over a year does not need to file a new claim and re-establish disability in order to be reinstated.

Auxiliary Beneficiaries - Only the individual who is determined to be fleeing, etc. will lose benefits. Others receiving benefits on the same earnings record will not be affected, although SSA has determined that it will not increase benefits for those who had been subject to the family maximum.

Initial claims must be fully developed even if SSA determines that the individual is subject to the "fugitive felon" penalty. This is important in order to protect auxiliary beneficiaries. It is important even if at the present time there are no individuals who would be eligible to receive benefits on the claimant’s earnings record.

Impact on Medicare coverage - Since Title II benefits will be suspended, but not terminated, Medicare eligibility based on Title II status will continue. However, many Social Security beneficiaries will be in danger of losing their Part B coverage for failure to pay the premium once their Social Security benefits cease. Indeed, when the Social Security Protection Act was under consideration in Congress, the loss of Part B coverage was seen as one of the savings that would result from passage of the legislation. Those who have other sources of funds with which to pay the premium will be able to retain their Part B coverage by paying the premium on a quarterly basis. However, for most of those who will lose their benefits this is not likely to be an option.

SSI Suspensions

- SSI recipients will not receive the advance notice of suspension. They will instead receive a very complicated 8 page notice of planned action which will contain all the information usually contained in a suspension notice and will also contain the information with respect to the good cause exceptions. As in the case of the Title II advance notices, the SSI notices will also set forth the good cause criteria, will state which of the requisites for good cause SSA deems to have already been satisfied and which elements remain to be established. This notice, in addition to stating that the recipient has 10 days (+ 5 for mailing) in which to request reconsideration with continued benefits pending decision on reconsideration, will also state that the individual has the same 10 days (+5 for mailing) in which to request good cause with benefits to continue for a 90 day period for the individual to establish that she meets the good cause requirements. Given the very limited amount of time in which to request good cause with continued benefits, it is extremely important to request both good cause and reconsideration on the suspension and associated overpayment as soon as possible.

As in the case of Title II benefits, mandatory good cause may be requested at any time and is not subject to administrative finality. Discretionary good cause may be requested up to 12 months from the date of the notice of planned action.

Changes in SSA’s Application of the "Fugitive Felon" Penalty?

- There are none except in those areas where change was explicitly required by the Social Security Protection Act. SSA still adheres to the position that the existence of an outstanding warrant alone is sufficient to establish that an individual is subject to the "fugitive" penalty. SSA still believes one can flee without knowing it, that one can be fleeing to avoid prosecution even when one has no reason to believe that any charges may have been filed.

The POMS does little to emphasize the right to appeal or the right to continued benefits pending reconsideration for SSI recipients. Advocates should not be surprised to see the continuation of the widespread due process violations that have been associated with this program in the past. In fact, the POMS instructions on how to respond to a contact from an individual or the representative of an individual whose benefits have been suspended continue to emphasize first and foremost the need to discourage the caller from coming in to the office. POMS SI 00530.600B. There is still no mention at all of the right to appeal.