Issues Presented:
               You requested advice on whether benefits to an inmate of the Nebraska Department of
                  Correctional Services could be reinstated if that inmate was placed into the Nebraska
                  Department of Correctional Services Re-Entry Furlough Program (“RFP”). Our research
                  shows that an inmate could be eligible for Title XVI disability benefits depending
                  upon whether his or her wages were determined to be income, and whether the residence
                  of his or her authorized sponsor was a public institution. An inmate could be eligible
                  for Title II disability benefits subject to the work activity rules. An inmate could
                  be eligible for Title II retirement and survivor benefits subject to the earnings
                  deduction rules.
               
               Factual Background:
               The documents forwarded with your memorandum requesting advice indicate that the current
                  revisions to Nebraska’s RFP are effective June 29, 2011, but were first effective
                  August 11, 2008. See generally Neb. Correctional Servs. Admin Reg. 201.12. The RFP is a conditional release program
                  that allows inmates of the State correctional system to prepare for parole or discharge
                  from incarceration by residing outside of a correctional facility under the supervision
                  of correction center staff, the State parole authority, the State probation authority,
                  or local law enforcement. See generally Neb. Correctional Servs. Admin Reg. 201.12. Selection for the program is based on
                  an inmate’s medical needs, financial obligations, pending legal actions, institutional
                  disciplinary record, county of commitment, program needs, and preparation for discharge
                  or parole. See Neb. Correctional Servs. Admin. Reg. 201.12 § I. Inmates with violent criminal records,
                  lengthy arrest records, or multiple incarcerations may not be considered for the program.
                  See Neb. Correctional Servs. Admin. Reg. 201.12 § I.
               
               While enrolled in the program, an inmate is required to reside in the State of Nebraska,
                  live in the residence of an authorized sponsor, and maintain employment in the community.
                  See Neb. Correctional Servs. Admin. Reg. 201.12 §§ IIB, IIIA. The inmate will remain
                  on the prison’s “out count,” but must remove all personal property from the prison.
                  See Neb. Correctional Servs. Admin. Reg. 201.12 § IID. While a parole officer must approve
                  a furlough residence prior to inmate placement, the inmate may not furlough or reside
                  in a Federally subsidized residence or public housing. See Neb. Correctional Servs. Admin. Reg. 201.12 § IIIA. Furthermore, the inmate must
                  maintain full-time employment, request permission to make any changes in employment
                  – including working overtime – and participate in recommended programming, which may
                  include volunteer activities. See Neb. Correctional Servs. Admin. Reg. 201.12 § IIIB, C.
               
               While participating in the RFP, an inmate is responsible for the costs of his or her
                  own housing, meals, and general subsistence. See Neb. Correctional Servs. Admin. Reg. 201.12 § IIIF. The inmate, however, must request
                  permission to meet these expenses from the Nebraska Department of Correctional Services
                  Inmate Accounting department. See Neb. Correctional Servs. Admin. Reg. 201.12 § IIIF. Specifically, the inmate must
                  remit his or her entire salary to the Inmate Accounting department. See Neb. Correctional Servs. Admin. Reg. 201.12 § IIIF. Then, the inmate must request
                  a check from his or her parole officer to meet an expense, or use a debit card pre-loaded
                  with funds by Inmate Accounting. See Neb. Correctional Servs. Admin. Reg. 201.12 § IIIF.
               
               On Wednesday, June 8, 2011, we contacted Layne G~, the Corrections Programs Administrator
                  for the Nebraska Department of Correctional Services, and Kathy F~, a supervisory
                  social worker for the Nebraska State Penitentiary, for further information regarding
                  the “residence of an authorized sponsor” requirement. Specifically, we inquired as
                  to whether the residence of an authorized sponsor had to be a single-family home.
                  Mr. G~ and Ms. F~ informed us that, although a single-family home would be the most
                  common type of residence of an authorized sponsor, such residence does not have to
                  be a single-family home, and can be a facility that provides vocational, or other
                  treatment services, if that type of residence is in the best interest of the inmate.
               
               On June 17, 2011, we requested additional information regarding whether any of the
                  field offices in Nebraska have been required to make the determination as to whether
                  an RFP participant is a “resident of a public institution.” On June 24, 2011, Ken
                  K~, an Operations Analyst for Area II, informed us that the field offices have not
                  been required to make such a determination.
               
               Analysis:
               The Social Security Act (“the Act”), approaches the issue of whether an incarcerated
                  individual may receive Social Security benefits differently depending upon whether
                  the individual is receiving benefits under Title II of the Act, or under Title XVI.
               
               Eligibility Under Title II
               Under Title II, generally, no monthly benefits shall be paid to any individual for
                  any month ending with, during, beginning with, or during a period of more than 30
                  days throughout all of which such individual is confined in a jail, prison, or other
                  penal institution or correctional facility pursuant to his or her conviction of a
                  criminal offense. See 42 U.S.C. § 402(x)(1)(A)(i). An individual, however, shall not be considered to be
                  confined in a jail, prison, or other penal institution or correctional facility if
                  he or she is residing outside such institution at no expense (other than the cost
                  of monitoring) to the institution or penal system, or any agency to which the penal
                  system has transferred jurisdiction over him or her. See 42 U.S.C. § 402(x)(1)(B). The agency has defined the term “confinement” to include
                  individuals who reside in halfway houses or work release programs. See Program Operations Manual System (“POMS”) GN 02607.200C. However, individuals participating in community-based early release programs outside
                  of correctional institutions could be eligible for Title II benefits because these
                  individuals are responsible for paying for their own basic living needs, including
                  food, clothing, rent, utilities, and other means of subsistence. See POMS GN 02607.200C. See also POMS GN 02607.160.
               
               Under the RFP, participants live outside the correctional facility and are required
                  to pay for their own housing, meals, and general subsistence. See Neb. Correctional Servs. Admin. Reg. 201.12 § IIIF. Therefore, we believe RFP participants
                  would not be considered “confined” for the purposes of Title II. In order to be eligible
                  for the RFP, however, “[i]nmates will be required to maintain full time employment.” Neb. Correctional Servs. Admin. Reg. 201.12 § IIIB (emphasis added).
                  Based on this requirement, any Title II entitlement would be subject to the rules
                  regarding work activity, i.e., trial work period, extended period of eligibility,
                  and deductions for excess earnings beyond the allowable amount. This may reduce or
                  limit Title II benefits that an RFP participant can receive.[1]
               Eligibility Under Title XVI 
               Title XVI precludes an individual from receiving benefits with respect to any month
                  if, throughout such month, he or she is a resident of a public institution. See 42 U.S.C. § 1382(e)(1)(a). See also 20 C.F.R. § 416.1325. “Institution” is defined as an establishment that makes available
                  some treatment or services in addition to food and shelter to four or more persons
                  who are not related to the proprietor. See 20 C.F.R. § 416.201. “Public institution” means an institution that is operated by
                  or controlled by the Federal government, a State, or a political subdivision of a
                  State such as a city or county. See 20 C.F.R. § 416.201.
               
               A “resident of an institution” is an individual who resides in an institution and
                  who receives, or can receive substantially all of his or her food and shelter, and
                  some or all of the other services that the institution makes available, regardless
                  of whether such individual makes payment to the institution for any of the services.
                  See POMS SI 00520.001B.5. A resident who becomes dissatisfied with the food occasionally, and eats elsewhere
                  for two or three days is still a resident of an institution because the food is available
                  to the individual whenever he or she wants to accept it. See POMS SI 00520.001B.5.
               The RFP requires a participant to reside in the residence of an authorized sponsor
                  that is not a Federally subsidized residence or public housing.  See Neb. Correctional Servs. Admin. Reg. 201.12 §§ IIB, IIIA. The residence of an authorized
                  sponsored most likely will be a single-family home, and therefore would not be considered
                  a public institution. However, as previously noted, the term “residence of an authorized
                  sponsor” is not limited to a single-family home, and could be a facility that offers
                  vocational training or other services. Therefore, it is possible that the residence
                  of an authorized sponsor could be determined to be a public institution. This is a
                  fact specific question that may need to be evaluated on a case-by-case basis.
               
               Even if the residence of an authorized sponsor is not a public institution, an RFP
                  participant must maintain full-time employment. See Neb. Correctional Servs. Admin. Reg. 201.12 § IIIB. Therefore, as with Title II disability
                  benefits, the participant’s earnings would likely affect his or her eligibility for
                  Title XVI benefits. See generally POMS SI 00815.001 and SI 00815.005.
               
               Conclusion:
               Based on our research, it is our opinion that a participant of the RFP would be considered
                  no longer confined for the purposes of Title II, and would be eligible for Title II
                  retirement and survivor benefits subject to the rules regarding work activity. We
                  also believe that an RFP participant could be eligible for Title II disability benefits,
                  but would be subject to the rules regarding work activity because, generally, full-time
                  employment is inconsistent with the inability to perform substantial gainful activity.
               
               Finally, an RFP participant’s entitlement to Title XVI disability benefits could be
                  affected by his or her full-time employment if his or her wages were determined to
                  be income and whether or not the residence of an authorized sponsor was determined
                  to be a public institution.
               
               Kristi A. S~
 Chief Counsel, Region VII 
By __________
               
               Scott C. K~
               Assistant Regional Counsel