You inquired whether New York State has a law governing the involuntary civil commitment
                  to public institutions of individuals convicted for sexual offense crimes immediately
                  at the end of their penal sentences. In particular, you asked about Mr. M~'s case.
               
               New York State does have such a law, known as the Sex Offender Management and Treatment
                  Act (“SOMTA”), which became effective April 13, 2007. However, care should be taken
                  in suspending benefits simply because an individual was civilly committed under this
                  law since the NY law is broader than what Congress allows for in the suspension of
                  sexual offender's benefits. Instead, determinations must be on a case-by-case basis.
                  For instance, Congress and the Social Security Administration (“SSA”) policy specifically
                  exempt individuals found not guilty by reason of insanity or who were incompetent
                  to stand trial while the NY law explicitly includes these individuals. Moreover, SOMTA
                  permits the involuntary commitment of individuals whose criminal convictions were
                  for offenses that do not contain sexual activity as an element. Congress has mandated
                  that benefits be terminated only if the crime the individual was convicted of contained
                  sexual activity as an element. Additionally, individuals processed under SOMTA may
                  not be found sexually dangerous and require only supervision to which suspension of
                  benefits is not consistent with Congressional directive and SSA policy. Finally, SOMTA
                  does not necessitate an individual be immediately confined at the end of the prison
                  term, while Congress and SSA policy require immediate confinement at the end of the
                  criminal imprisonment. Thus, suspension of Social Security benefits because an individual
                  was civilly committed under NY's SOMTA is not automatic and determinations must be
                  on a case-by-case basis. With regard to Mr. M~, SSA must do additional development
                  to ascertain whether his commitment is under SOMTA as discussed in detail below.
               
               FACTUAL BACKGROUND
               Mr. Mark M~ was convicted of attempted sexual abuse in the first degree, a class E
                  felony and an offense which has sexual activity as an element. Mr. M~ was civilly
                  committed at the end of his prison term and no evidence suggests he was ever at liberty.
                  Consequently, if Mr. M~ was civilly committed under New York's new law, his benefits
                  should be suspended. However, Mr. M~ could have been civilly committed under another
                  law, particularly Corrections Law § 402, and not be eligible for suspension of his
                  benefits on these grounds. Please see below for a more detailed legal analysis.
               
               LEGAL ANALYSIS
               Cessation of Benefits Under Sexual Predator laws
               Congress addressed the impact of civil commitment under a sexual predator law to an
                  individual's Social Security benefits in 1999. Ticket to Work and Work Incentives
                  Improvement Act Of 1999, Pub. L. No. 106-170, 113 Stat. 1860, 1909. The law amended
                  Section 202(x)(1)(A) of the Social Security Act (42 U.S.C. 402(x)(1)(A)) to deny benefits
                  to “sex offenders remaining confined to public institutions upon completion of prison
                  term” by adding the following new clause:
               
               (iii) immediately upon completion of confinement as described in clause (i) pursuant
                  to conviction of a criminal offense an element of which is sexual activity, is confined
                  by court order in an institution at public expense pursuant to a finding that the
                  individual is a sexually dangerous person or a sexual predator or a similar finding.
               
               Accordingly, Program Operations Manual Systems (“POMS”) GN 02607.350 provides for the suspension of Title II benefits for prisoners who are confined due
                  to “sexually dangerous person verdicts” from April 1, 2000 and onward chronologically.
                  SSA policy pertains to situations where “mental institutions confine certain individuals
                  under specific State statutes as 'sexually dangerous' persons, 'sexual predators,'
                  or similar findings.” GN 02607.350.A.1.a. The following factors are typically present for the law to be applicable:
               
               The mental institution must immediately detain the individual for psychological evaluation
                  at the completion of the individual's penal term;
               
               The individual had to be serving a sentence in the correctional institution for a
                  criminal offense of which an element was sexual activity;
               
               The individual must be under a court order as a “sexually dangerous person inmate;”
                  and
               
               The individual must be confined to an institution for more than thirty continuous
                  days before SSA will suspend benefits.
               
               Id. Many of those individuals are already prison inmates so SSA would have previously
                  suspended their benefits. SSA does not reinstate benefits when inmates complete prison
                  sentences and the department of corrections begins the sexual predator law proceedings.
                  Instead, the benefits remain in suspense until the court issues a final order deciding
                  if the particular inmate should be civilly committed as a sexually dangerous person.
                  GN 02607.350A.1.a.
               Suspension of benefits for sexually dangerous persons occurs as following:
               Benefits continue to be suspended after the court issues an order or finding that
                  the individual is a sexually dangerous person and commits him/her to a mental institution
                  for more than thirty continuous days.
               
               GN 02607.350A.1.b. Benefits to an individual should not be suspended when:
               
               “The institution does not immediately confine the individual after completion of the
                  prison sentence;
               
               “The court does not convict the person of a sexual crime and the person will not complete
                  a sentence for conviction of such a crime;
               
               This includes individuals who are considered not guilty by reason of insanity or incompetent
                  to stand trial;
               
               “When the results of the psychological evaluation indicate the individual is not sexually
                  dangerous.
               
               GN 02607.350B.1. An effective date of suspension for a sexually dangerous person can never be before
                  December 1999. GN 02607.350A.1.c.
               II. SOMTA and the Suspension of Social Security Benefits SOMTA became effective on
                  April 13, 2007. N.Y. MENT HYG Law § 10.00-10.17 (M~'s 2007). SOMTA addresses the danger
                  sexual offenders pose to society through “comprehensive programs of treatment and
                  management” involving civil commitment or intensive outpatient supervision after criminal
                  incarceration. N.Y. MENT HYG Law § 10.01.
               
               To suspend benefits the Social Security Act and SSA policy require that the sexual
                  offender be civilly committed immediately after criminal incarceration. See Pub. L.
                  No. 106-170, 113 Stat. 1860, 1909. See also GN 02607.350A.1.a. and GN 02607.350B.1. SSA policy further mandates that the detention includes a psychological evaluation.
                  SOMTA delineates the process of civil commitment with provisions for the custodial
                  agency to begin proceedings prior to the individual's anticipated release. It also
                  outlines the process for the detention of a sex offender immediately after his criminal
                  incarceration ends. N.Y. MENT HYG Law § 10.05(b); § 10.06(h). Additionally, numerous
                  provisions of SOMTA pertain to the psychological evaluation(s). Id. § 10.05(e), § 10.06(c),(d),(e), § 10.08(b). Therefore, SOMTA allows for the immediate
                  civil confinement of an individual after his/her criminal incarceration along with
                  at least one psychological evaluation which could satisfy the criteria to suspend
                  benefits. Id.
               However, under SOMTA the sexual offender might not be confined immediately at the
                  end of the prison term. The statute allows for the sex offender civil management petition
                  to be filed anytime after the end of the penal term. The individual might be at liberty
                  when the petition is filed. N.Y. MENT HYG Law § 10.06(h). Under SOMTA, a petition
                  for confinement may also be filed for individuals who are intensely supervised but
                  otherwise not already detained. Id. at §10.11(d)(4). Since the Social Security Act and SSA policy require confinement
                  immediately after incarceration, suspension of benefits would not be appropriate if
                  one of these SOMTA provisions applies. GN 02607.350B.1. Thus, persons who are civilly committed under SOMTA after being released from prison
                  for a period should not have their benefits suspended.
               
               Another requirement for the suspension of benefits under the Social Security Act and
                  SSA policy is that the individual be convicted of a crime that has sexual activity
                  as an element. See Pub. L. No. 106-170, 113 Stat. 1860, 1909 and GN 02607.350A.1.a. SOMTA is far broader than the federal law. SOMTA covers circumstances expressly excluded
                  by Congress and SSA policy such as when an individual is found not guilty by reason
                  of insanity and therefore not convicted of a crime. N.Y. MENT HYG Law §10.03(g)(3),
                  §10.07(c)(ii). SOMTA defines “detained sex offender” to include “a person charged
                  with a sex offense who has been found not responsible by reason of mental disease
                  or defect.” Id. at §10.03(g)(3). Moreover, at the civil commitment trial the individual's “sex offense
                  shall be deemed established and shall not be relitigated at the trial, whenever it
                  is shown …the respondent previously has been found not responsible by reason of mental
                  disease or defect for the commission of such offense or for an act or acts constituting
                  such offense.” Id. at § 10.07(c)(ii). Thus, SOMTA includes circumstances that SSA policy specifically
                  exempts from suspension of benefits. See GN 02607.350.A.1.a. and GN 02607.350B.1. Those individuals who are found not guilty by reason of insanity or mental defect
                  should not have benefits suspended for being declared a sexually dangerous person
                  even if civilly committed under SOMTA.
               
               Additionally, SOMTA incorporates a more expansive class of crimes than those contemplated
                  by Congress or SSA. SOMTA considers a sex offender to include “a person who stands
                  convicted of a designated felony that was sexually motivated.” N.Y. MENT HYG Law §10.03(g)(4).
                  Many of the SOMTA felonies do not have sexual activity as an element of the offense,
                  such as arson, burglary and robbery to name a few. Id. at §10.03(f). Also, whether a crime is sexually motivated is not determined at the
                  time of conviction but rather during the civil commitment proceedings. Id. at §10.05(g), §10.05(j), §10.07(c)(ii). Consequently, individuals who have never
                  been convicted of a criminal offense with sexual activity as an element should not
                  have benefits suspended. However, some of the SOMTA felonies, for example promoting
                  prostitution, disseminating indecent material to minors, use of a child in a sexual
                  performance, do contain sexual activity as an element of the offense. N.Y. MENT HYG
                  Law §10.03(f). In those instances, provided the other criteria are met, SSA should
                  suspend the benefits of individuals convicted of crimes containing as sexual activity
                  an element. Please see Section IV for listings of the designated felonies according
                  to whether the criminal conviction of the felony included sexual activity as an element
                  of the offense.
               
               Congress and SSA also require a court order finding the person to be a “sexually dangerous
                  person,” “a sexual predator” or something similar. Some individuals civilly committed
                  under SOMTA might meet this requirement. The NY statute delineates the need for court
                  orders throughout the process. N.Y. MENT HYG Law §10.06(h)(k), §10.07(f). Under SOMTA,
                  the civil commitment process ends with a trial proceeding where the determination
                  of whether the individual is a “dangerous sex offender” is made and upon such a finding
                  the individual is confined by court order. Id. at §10.07(f). The confined individual is then granted at least annual psychiatric
                  examinations to determine if the person remains a “dangerous sex offender” requiring
                  confinement. §10.09(b). If at any time the confined person petitions for discharge
                  and/or release under supervision, the court may order an evidentiary hearing at which
                  the court will determine if the person is currently a “dangerous sexual offender”
                  and if so, issue a court order to continue the individual's confinement. §10.09(f)-(h).
                  Thus, court orders are issued throughout the process embodying possibly multiple findings
                  on whether an individual is a “dangerous sexual offender.”
               
               If the court determines the individual is not a “dangerous sex offender requiring
                  confinement” it may, however, find the person to be a “sex offender requiring strict
                  and intensive supervision.” §10.07(f). These individuals will be subject only to intense
                  supervision and not civil commitment. §10.01(c), §10.07(f), §10.11. In those circumstances,
                  SSA benefits would not be suspended. GN 02607.350B.1. Thus, the individuals who are not found “dangerous” under SOMTA should not have their
                  benefits suspended. Also, sex offenders requiring supervision are not confined so
                  suspension of benefits is precluded on this ground as well. Id.
               Finally, Congress requires that sex offenders be civilly committed “in an institution
                  at public expense” before suspension of benefits is allowed. While SOMTA does not
                  specifically state individuals will be civilly committed in an institution at public
                  expense, this can be inferred by several statute sections. SOMTA requires the individual
                  be civilly committed to a “secure treatment facility” both during the process of determining
                  sexual dangerousness and after such a positive finding. §10.06(k)(i), §10.07(f). Section
                  10.03(o) of the Act defines a “secure treatment facility” as designated by the NYS
                  Commissioner of Mental Health, staffed by personnel from the Offices of Mental Health
                  and Mental Retardation and Developmental Disabilities and possibly located on the
                  grounds of a correctional facility. Moreover, the Commissioner of the Office of Mental
                  Health and/or of the Office Mental Retardation and Developmental Disabilities is charged
                  with the care, custody and control of civilly committed persons during their treatment
                  and confinement. §10.10. Since the commissioner and staff are public employees, presumably
                  the facility will be a public institution and probably a correctional facility run
                  by NYS.
               
               Consequently, some persons civilly committed under NY's SOMTA statute will fit into
                  Congress's and SSA's concept of a sexually dangerous person whose benefits should
                  be suspended. Other individuals though will not and their benefits should continue
                  or be resumed. Case-by-case determinations may have to be made as SSA has previously
                  done in connection to the suspension of civilly committed sexual offenders' benefits.
               
               III. Determining if a Sexual Offense is an Element of the Criminal Conviction Knowledge
                  of what crime the civilly committed individual was initially convicted of is imperative,
                  because, as discussed, SOMTA covers a much broader class of individuals than Congress
                  or SSA policy. See Infra Sec. II.
               
               Felony offenses that do not contain as an element sexual activity should not result
                  in the suspension of benefits. The attached Appendix I is divided into two tables
                  felony offenses without sexual activity as an element and felony offenses with sexual
                  activity as an element
               
               Please note a separate felony offense was created by the legislature on April 13,
                  2007. The newly created felony applies to anyone committing a designated felony for
                  “his or her own direct sexual gratification” which is an additional, distinct crime
                  known as the “sexually motivated felony” under NY penal law § 130.91. NY PENAL Law
                  § 130.91 (McKinney's 2007). Individuals convicted of this separate crime are convicted for an offense
                  containing sexual activity as an element and should have benefits suspended.
               
               One method of determining what crime was involved is checking the NYS Department of
                  Correctional Services' “Inmate Population Information Search” available online at
                  http://nysdocslookup.docs.state.ny.us/kinqw00 . All inmates sentenced to NY state prison since the early 1970s are listed in the
                  database, except youthful offenders and those who have had their convictions set aside
                  by a court. The search is limited to the first four crimes listed so there may be
                  additional crimes not shown. (Conceivably, the first four crimes could not contain
                  sexual activity as an element and one of the crimes not listed might have sexual activity
                  as an element of the offense.) Of course, other methods may be available or preferable
                  and SSA may already be aware of an inmate's conviction(s) from when benefits were
                  suspended due to the individual's incarceration.
               
               An additional problem is determining whether and under what law an individual is civilly
                  committed after criminal incarceration is completed. Either the NYS attorney general
                  or the sex offender may request closure of the courtroom and sealing of all papers
                  by showing good cause under SOMTA. N.Y. MENT HYG Law §10.08(g). Thus, the court order
                  may not be available. SSA will have to decide how to handle such cases.
               
               BARBARA L. S~
               Regional Chief Counsel
By:______________________
Michelle L. C~t
Assistant Regional Counsel
               
               APPENDIX I
               Below are two tables divided between designated felonies without sexual activity as
                  an element of the offense and designated felonies with sexual activity as an element
                  of the offense. Felony attempts or conspiracy to commit any of the below felonies
                  also suffices under SOMTA. §10.03(f). For each offense the N.Y. Penal Code Section
                  is given.
               
               Designated Felonies Without Sexual Activity as an Element of the Offense:
               Assault in the second degree as defined in section 120.05
               2. Assault in the first degree as defined in section 120.10
               3. Gang assault in the second degree as defined in section 120.06
               4. Gang assault in the first degree as defined in section 120.07
               5. Stalking in the first degree as defined in section 120.60
               6. Manslaughter in the second degree as defined in subdivision one of section 125.15
               7. Manslaughter in the first degree as defined in section 125.20
               8. Murder in the second degree as defined in section 125.25
               9. Aggravated murder as defined in section 125.26
               10. Murder in the first degree as defined in section 125.27
               11. Kidnapping in the second degree as defined in section 135.20
               12. Kidnapping in the first degree as defined in section 135.25
               13. Burglary in the third degree as defined in section 140.20
               14. Burglary in the second degree as defined in section 140.25
               15. Burglary in the first degree as defined in section 140.30
               16. Arson in the second degree as defined in section 150.15
               17. Arson in the first degree as defined in section 150.20
               18. Robbery in the third degree as defined in section 160.05
               19. Robbery in the second degree as defined in section 160.10
               20. Robbery in the first degree as defined in section 160.15
               21. Any felony attempt or conspiracy to commit any of foregoing offenses
               Designated Felonies With Sexual Activity as an Element of the Offense:
               Promoting prostitution in the second degree as defined in section 230.30
               2. Promoting prostitution in the first degree as defined in section 230.32
               3. Compelling prostitution as defined in section 230.33
               4. Disseminating indecent material to minors in the first degree as defined in section
                  235.22
               
               5. Use of a child in a sexual performance as defined in section 263.05
               6. Promoting an obscene sexual performance by a child as defined in section 263.10
               7. Promoting a sexual performance by a child as defined in section 263.15
               8. Any of the felonies defined in article one hundred thirty of the penal law (“sex
                  offenses”):
               
               a. § 130.20 Sexual misconduct
               b. § 130.25 Rape in the third degree
               c. § 130.30 Rape in the second degree
               d. § 130.35 Rape in the first degree
               e. § 130.40 Criminal sexual act in the third degree
               f. § 130.45 Criminal sexual act in the second degree
               g. § 130.50 Criminal sexual act in the first degree
               h. § 130.52 Forcible touching
               i. § 130.53 Persistent sexual abuse
               j. § 130.55 Sexual abuse in the third degree
               k. § 130.60 Sexual abuse in the second degree
               l. § 130.65 Sexual abuse in the first degree
               m. § 130.65 Aggravated sexual abuse in the fourth degree
               n. § 130.66 Aggravated sexual abuse in the third degree
               o. § 130.67 Aggravated sexual abuse in the second degree
               p. § 130.70 Aggravated sexual abuse in the first degree
               q. § 130.75 Course of sexual conduct against a child in the first degree
               r. § 130.80 Course of sexual conduct against a child in the second degree
               s. § 130.85 Female genital mutilation
               t. § 130.90 Facilitating a sex offense with a controlled substance
               u. § 130.91 Sexually motivated felony
               v. § 130.95 Predatory sexual assault
               w. § 130.96 Predatory sexual assault against a child
               9. Patronizing a prostitute in the first degree as defined in section 230.06 of the
                  penal law
               
               10. Incest in the second degree as defined in section 255.26 of the penal law
               11. Incest in the first degree as defined in section 255.27 of the penal law
               12. Any felony attempt or conspiracy to commit any of foregoing offenses