Introduction
The State of Washington, by the Division of Children and Family Services (DCFS), a
component of the Department of Social & Health Services (DSHS), is a dependent guardian
for minor children that are removed from their parents care. DCFS files applications
and completes forms for disability benefits on behalf of some of these children. These
forms include the application itself, a designation of representative designating
another DCFS employee as the children’s representative, an authorization for release
of the children’s Social Security records to DCFS employees, and an authorization
for release of the children’s records to the agency from third parties.
Questions Presented
1) Whether DSHS/DCFS may be considered the legal guardian of a dependent child for
Social Security purposes.
2) Whether SSA has an obligation to require DSHS to designate which of its positions
are authorized to act as a legal guardian.
3) Whether SSA has an obligation to require DSHS to designate which of its positions
are authorized to act as a Social Security authorized representative
4) What access does a DSHS employee acting as a legal guardian or as an authorized
representative have to a dependent child’s Social Security records.
5) Whether the appointment of one DSHS employee as an authorized representative allows
SSA or State Disability Determination Services (DDS) employees to speak to other DSHS
employees about the dependent child’s disability claims.
Short Answers
1) Yes, a state court order declaring DSHS/DCFS the legal guardian of a dependent
child sufficiently establishes legal guardianship for Social Security purposes.
2) No, SSA does not have a legal obligation to require DSHS to designate which of
its positions are authorized to act as a legal guardian. However, it is recommended
that SSA request DSHS to designate which positions are authorized to act as legal
guardians.
3) No, SSA has no obligation to require DSHS to designate positions which are authorized
to act as a Social Security authorized representative.
4) DSHS employees’ access to a dependent child’s Social Security records is based
on their individual roles. DSHS employees acting as legal guardians may directly receive
non-medical records, but must designate a healthcare professional to receive the dependent
child’s medical records. A DSHS employee properly appointed as a dependent child's
authorized representative may directly receive disclosures of non-medical and medical
records.
5) No, the appointment of a particular DSHS employee as an authorized representative
does not in itself permit SSA or DDS to disclose information to other DSHS employees
who may be assisting the authorized representative.
Background
DSHS employees file disability benefits applications on behalf of some of the minor
children who are in the custody of DSHS. In addition, the employees sign documents
on behalf of the children to authorize the release of information from SSA and to
designate another DSHS employee to act as the children’s Social Security authorized
representative. These “packets” of forms are forwarded to SSA for processing. You
provided four cases as representative samples of the documents that were prepared
by DSHS employees. Although there were many similarities in how the employees completed
the paperwork, none of them completed the paperwork in an identical manner.
In each sample case, DSHS provided a copy of the court order appointing DSHS/DCFS
as the legal guardian for the dependent child. One sample case included an application
for Supplemental Security Income (SSI) disability benefits. The applicant for SSI
disability benefits was the Secretary, DSHS, and listed a relationship to the claimant
as “Agency.” In all four samples, a Supplemental Security Income Facilitator (SSI
Facilitator) completed a function report on behalf of the child. On these reports,
the social workers designated their relationship to the child as “SSIF Social Worker,”
“DCFS SSIF,” “SSIF,” or “SSIF” with a stamp “For Secretary Department of Social and
Health Services.”
In all four sample cases the SSI Facilitator completed an Appointment of Representative
Form SSA-1696, appointing another state employee in the DSHS Financial Resource Unit
to be the child’s Social Security authorized representative. Both DSHS employees signed
the form, along with the stamp, “For Secretary Department of Social and Health Services.”
The SSI Facilitators completed the Consent for Release of Information Form SSA-3288,
authorizing SSA to release information from the child’s Social Security records to
the SSI Facilitator. The signature line indicated that the person signing was the
“individual to whom the information/record applies or that person’s parent (if a minor)
or legal guardian.” The SSI Facilitators stated that their relationship to the children
was “SSIF.”
Analysis
A. DSHS/DCFS can be the legal guardian of a dependent child for Social Security purposes.
SSA should consider DSHS/DCFS as the legal guardian of a dependent child for Social
Security purposes when SSA receives a court order declaring DSHS/DCFS the legal guardian
of the child. Pursuant to Washington State law, a state court may remove children
from their parents care through a dependency proceeding. Wash. Rev. Code § 13.34.130.
If the court determines that the child is “dependent,” meaning he is abandoned, abused,
or has no parent capable of adequately caring for him, the court may order that “custody,
control, and care” of the child be placed with the “department.” Wash. Rev. Code §
13.34.130, 13.34.030. The “department” is defined as DSHS. Wash. Rev. Code § 13.34.030(4).
The transfer of custody of the child to DSHS/DCFS is a transfer of legal custody,
and as such, the State is required to provide the child food, clothing, shelter, and
medical care. Wash. St. Juvenile Ct. R. 3.8(e); In re Dependency of Schermer, 169 P.3d 452, 460 (Wash. 2007); State v. Harrell, 718 P.2d 797, 800 (Wash. 1986).
SSA allows legal guardians to act on behalf their wards in various circumstances,
such as accessing Social Security records, signing applications, or acting as a representative
payee. However, SSA regulations do not define the term legal guardian. In the context
of selecting a representative payee, SSA policy provides that a legal guardian is
a “third party appointed by a State court to manage the affairs of an individual who
is not able to do so.” Program Operations Manual System (POMS) GN 00502.139. Similarly, SSA policy provides that a “court appointed” legal guardian is a proper
applicant to file an application for a Social Security card on behalf of another.
POMS RM 10205.025. The Privacy Act, which governs the release of SSA records to third parties, states
that a “legal guardian” is one established by court order. 5 U.S.C. § 552a(h). In
all these instances, the determination of whether there is a legal guardian is dependent
on a valid state court order. Because Washington State law provides that a court may
order a dependent child to be placed in the custody, control, and care of DSHS, SSA
should recognize DSHS/DCFS as the legal guardian of the dependent children for Social
Security purposes.
B. SSA should request DSHS to designate which positions are authorized to act as
a legal guardian.
Although SSA is not required to do so, SSA should request the State to designate specific
positions, such as SSI Facilitators, as being authorized to act on behalf of DSHS
as the legal guardian for dependent children. The Secretary of DSHS has the executive
authority to administer the internal affairs of DSHS. Wash. Rev. Code §§ 43.20A.010,
43.20A.050. In turn, the Secretary may delegate any power or duty vested by law to
any other assistant or subordinate. Wash. Rev. Code § 43.20A.110. In order to determine
who within DCFS has the power to act on behalf of the children, SSA should ascertain
what powers are delegated from the Secretary and to whom these powers are delegated.
Although SSI Facilitators submit applications for SSI benefits, SSA-1696 forms, and
SSA-3288 forms, we have found no Washington State code provision or published policy
statement reflecting the Secretary’s delegations of authority. Although some of the
documents provided were signed by the SSI Facilitators using the stamp, “For Secretary
Department of Social and Health Services,” this stamp is not reliable evidence establishing
the delegated authority. We recommend that you contact DSHS to determine the delegations
of authority.
Regardless of whether DSHS designates certain positions as being authorized to act
as legal guardians, SSA must require individuals purporting to act as a legal guardian
to show evidence of their identity and authority. For example, individuals must present
evidence of their authority to sign applications on behalf of others. 20 C.F.R. §§
416.315, 416.320(b). A legal guardian is required to provide proof, such as a court
order, of his relationship to the child. POMS GN 03305.005B.2.c. In addition, when a State agency with legal custody of an individual files an application
for a Social Security card, the State agency employee is required to provide acceptable
evidence corroborating their identity. POMS RM 00202.005.D.5; POMS RM 10205.050.B.1. Therefore, consistent with these policies, SSA must require that SSI Facilitators
provide evidence of their authority and identity. See id. (listing acceptable forms of evidence).
C. SSA has no obligation to require DSHS to designate specific positions to act as
a Social Security authorized representative.
There is no need for SSA to request the State to designate specific positions within
DSHS to act as appointed authorized representatives. A legal guardian may appoint
another individual, including a non-attorney, to act as the dependent child’s Social
Security authorized representative. POMS GN 03910.040(A). The only limitation regarding who can be appointed as an authorized representative
is that a non-attorney representative must be generally known to have a good character
and reputation and is capable of giving help to the claimant in connection with their
claim. 20 C.F.R.§ 416.1505. SSA will presume that the appointed representative is
qualified, unless there is evidence to the contrary. POMS GN 03910.020. Therefore, the legal guardian is free to appoint any third party as the child’s
authorized representative, as long as that person meets SSA’s requirements.
D. DSHS employees’ access to a dependent child’s Social Security records is based
on their individual roles.
Unless an exception applies, SSA may only disclose an individual’s records that are
subject to the Privacy Act to a third party if there is written consent. 5 U.S.C.
§ 552a; 20 C.F.R. § 401.100(a). A legal guardian may receive a dependent child’s non-medical
records after identifying the specific records that are sought. 20 C.F.R. § 401.40(a),
(b). A legal guardian may receive a dependent child’s medical records only after designating
a healthcare professional to receive the records, who may then provide them to the
legal guardian. 20 C.F.R. § 401.55(c)(2); POMS GN 03305.005.B.2.c. In the four cases reviewed for this opinion, SSI Facilitators acting as the
legal guardian signed the SSA-3288 form, requesting that medical records be disclosed
directly to them. The SSI Facilitators did not designate any healthcare professionals
to receive the records. Consistent with the regulations, SSI Facilitators acting as
legal guardians must designate healthcare professionals to receive the dependent child’s
medical records.
A DSHS employee properly appointed as a dependent child's authorized representative
may directly receive disclosures of the dependent child’s records, including medical
records. 20 C.F.R. § 416.1510(a)(1); POMS GN 03910.025.
E. The appointment of a DSHS employee as an authorized representative does not permit
SSA or DDS to disclose information to other DSHS employees who may be assisting the
authorized representative.
As noted above, DSHS as the legal guardian may appoint an authorized representative
for a dependent child and SSA may disclose the child’s Social Security records and
information, including medical records, to the authorized representative. However,
neither SSA nor DDS may disclose information to DSHS employees who are assisting the
Social Security authorized representative, unless the SSI Facilitator who is acting
as the legal guardian completes a Form SSA-3288. 20 C.F.R. § 401.100(b); POMS GN 03316.125.A. Using this form, DSHS when acting as legal guardian may authorize disclosure to
the specific DSHS employees or to DSHS as an entity. POMS GN 03305.015.
CONCLUSION
DSHS/DCFS can be considered the legal guardian of dependent children for Social Security
purposes when SSA receives a court order naming DSHS/DCFS as the legal guardian of
a dependent child. SSA should establish that individual DSHS employees are authorized
to act as legal guardians and require that these employees provide evidence corroborating
their identity. However, there is no requirement that DSHS designate particular positions
that may act as a dependent child’s Social Security authorized representative.
The level of access that a DSHS employee has to a dependent child’s Social Security
records depends on their individual roles. Neither SSA nor DDS may directly disclose
medical records to DSHS employees acting as legal guardian. A dependent child’s medical
records must first be sent to a designated healthcare professional, although non-medical
records may be sent directly to the designated legal guardian. SSA and/or DDS may
directly disclose both medical and non-medical records to a DSHS employee who is properly
appointed as a child's Social Security authorized representative. However, neither
SSA nor DDS may disclose information to other DSHS employees who are assisting the
Social Security authorized representative, unless the legal guardian completes a Form
SSA-3288 authorizing disclosure to specific DSHS employees or to DSHS as an entity.
A Memorandum of Agreement could be useful in addressing the proper roles, authorities,
and procedures used by DSHS/DCFS and SSA in future cases.