Questions Presented
You asked:
1) whether the agency should suspend benefits for Title II beneficiaries who enter
Colorado’s Veterans Trauma Court (VTC), and who receive sanctions for failing to abide
by VTC rules; and
2) whether NH G~’s benefits should be suspended during a period of confinement at
the E~ County Jail.
Short Answers
Colorado’s VTC provides jail diversion services to participating veterans, sparing
them from imprisonment so long as they follow program rules and the terms of their
plea agreement. Participating in the VTC is not the same as confinement pursuant to
a conviction of a criminal offense that would trigger a suspension of benefits. Relatedly,
VTC participants may be sanctioned if they do not follow program rules or if they
commit other infractions, with sanctions ranging from a reprimand to jail or prison
time. Whether a sanction leads to confinement that would trigger a suspension of benefits
must be considered on a case-by-case basis. Finally, the NH’s confinement in the E~
County Jail from October XX, 2016 to February XX, 2017, triggered a suspension of
his Title II benefits.
Background
The VTC serves United States veterans with trauma spectrum disorders and/or substance
abuse issues who are charged with lower level felonies or misdemeanors. The VTC is
a post-plea program, meaning veterans must plead guilty and agree to abide by the
VTC’s rules. The VTC does not operate like a traditional courtroom. Participants actively
engage in treatment and counseling, make regular court appearances, and undergo careful
supervision. VTC staff members also help participants access treatment and assistance
programs. The VTC strives to make veterans take responsibility for their actions,
reintegrate them back into society, and make them whole again.[1]
The NH is a veteran with a history of substance abuse. He pled guilty to a non-violent
felony and was accepted into the VTC in November 2014. The NH was not incarcerated
at that time. In October 2016, however, VTC staff learned that the NH was not complying
with the requirements of the program. The NH’s substance abuse issues contributed
to his noncompliance, and the VTC judge ordered that the NH be taken into custody
for his own safety until a course of action could be chosen.
The NH was taken into custody at the E~ County Jail on October XX, 2016. The VTC judge
later ordered that the NH participate in a 90-day Reintegration and Recovery (R&R)
Program at the E~ County Jail.[2] The R&R Program provides comprehensive substance abuse treatment to participants
while they are confined in jail. See Reintegration & Recovery, https://www.epcsheriffsoffice.com/sections-detention-bureau/security-division/reintegration-recovery (last visited Apr. 25, 2018). Participants do not pay for the cost of treatment.
The NH’s treatment began on November XX, 2016, and ended on February XX, 2017. He
was then transferred to the Department of Veterans Affairs for further treatment in
a partial hospitalization program. The NH’s condition has since improved, and he successfully
completed the VTC program in December 2017.
Discussion
Participation in the VTC and Sanctions for Violating VTC Rules Do Not Warrant Automatic
Suspension of Benefits
Under the Social Security Act (the Act), monthly benefits cannot be paid to a beneficiary
while he “is confined in a jail, prison, or other penal institution or correctional
facility pursuant to his conviction of a criminal offense” for more than 30 days.
42 U.S.C. § 402(x)(1)(A)(i);[3] see also 20 C.F.R. § 404.468(a). The legislative history for what would become § 402(x) of
the Act shows that Congress wished to conserve agency resources by suspending benefits
to prisoners whose needs were provided for at taxpayer expense during confinement.
See S. Rep. No. 96-987, at 7-9 (1980) (“The need for this continuing source of income
is clearly absent in the case of an individual who is being maintained at public expense
in prison.”); see also Wanless v. Principi, 18 Vet. App. 337, 351-53 (2004) (discussing legislative history).
A series of POMS describes how agency employees should evaluate whether to suspend
benefits for confined beneficiaries. See POMS GN 02607.001-.975. GN 020607.160(A)(1)(b) explains that benefits should be suspended if a beneficiary
is “convicted of a criminal offense and sentenced to a period of confinement in a
correctional facility or institution,” and “based on that conviction, remains confined
in a United States (U.S.) correctional facility or institution for more than 30 continuous
days.” The POMS treat a guilty plea as a criminal conviction. See GN 02607.001(B)(2).
Here, participation in VTC does not warrant an automatic suspension of benefits. Although
participants must plead guilty to a criminal offense to enter the program, VTC helps
veterans avoid confinement in jail or prison. See Participation Guide at 2; 42 U.S.C. § 402(x)(1)(A)(i) (confinement in jail or similar
facility for more than 30 days required for suspension of benefits); 20 C.F.R. § 404.468(a)
(same). Participation in VTC, standing alone, is not confinement and does not warrant
suspending benefits.
Relatedly, a sanction for failing to comply with VTC rules or committing other infractions
also does not warrant an automatic suspension of benefits. Although a sanction may
lead to jail or prison time, less severe sanctions like a reprimand from the VTC judge
or community service are also possible. See Participation Guide at 7-8. A sanction does not necessarily result in confinement
that would trigger a suspension of benefits under the Act. See 42 U.S.C. § 402(x)(1)(A)(i); 20 C.F.R. § 404.468(a). Instead of focusing on a beneficiary’s
participation in VTC or whether the beneficiary has been sanctioned, agency staff
should follow the applicable POMS on a case-by-case basis to determine if the criteria
for a suspension of benefits are met. See GN 02607.160(A)(1)(b).
The NH’s Benefits Should Have Been Suspended During His Confinement
The NH’s confinement at the E~ County Jail triggered the Act’s suspension requirement.
Section 402(x) of the Act has three criteria for suspending benefits:
The beneficiary must be “confined in a jail, prison, or other penal institution or
correctional facility”;
The confinement must last more than 30 days; and
The confinement must be “pursuant to [the beneficiary’s] conviction of a criminal
offense.”
42 U.S.C. § 402(x)(1)(A)(i).
Here, a letter from the E~ County Sheriff’s Office states that the NH “was in custody
at the E~ County Jail” from October XX, 2016, to February XX, 2017. The NH’s 111-day
confinement in the E~ County Jail satisfies the first two criteria of § 402(x)(1)(A)(i).
See 20 C.F.R. § 404.468(c) (describing confinement).
The NH’s confinement also satisfies the third criterion because it was “pursuant to”
his conviction of a criminal offense. See 42 U.S.C. § 402(x)(1)(A)(i). The NH pled guilty to a felony charge in order to enter
the VTC program. The POMS treat a guilty plea as a conviction. See GN 02607.001(B)(2). The NH violated VTC rules, which prompted the judge to order the
NH into custody and, later, to complete the E~ County Jail’s confined R&R program.
Because the NH’s confinement would not have occurred absent his guilty plea and criminal
conviction, we conclude that the NH’s confinement was “pursuant to” his conviction.
See Black’s Law Dictionary, Pursuant To (10th ed. 2014) (pursuant to means “[i]n compliance with” or “in accordance
with”); Wilkins v. Callahan, 127 F.3d 1260, 1261-62 (10th Cir. 1997) (upholding suspension of benefits where the
beneficiary was confined to a state security hospital for treatment and noting the
purpose of the Act was “to deny benefits to those persons whose needs are being provided
at public expense due to their confinement . . . .”). The NH was thus confined in
the E~ County Jail for more than 30 continuous days pursuant to his conviction of
a criminal offense, which triggered the Act’s suspension requirement. See 42 U.S.C. § 402(x)(1)(A)(i).
Our conclusion is also consistent with precedential OGC opinions that hinged on whether
each beneficiary’s confinement was mandatory or voluntary. Opinions from Missouri
and Texas found that benefits should be suspended while beneficiaries were confined
in prison and participating in mandatory substance abuse treatment programs. PR 14-112
Request for Legal Opinion – Suspension of Benefits for Individual on Supervised Probation
in a Residential Treatment Facility, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/1506805028 (last visited Apr. 25, 2018); PR 15-052 Whether Confinement in a Texas Substance
Abuse Felony Punishment Facility Amounts to Confinement under Section 202(x)(1)(A)(i)
of the Social Security Act, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/1506805048 (last visited Apr. 25, 2018).
In contrast, opinions from Illinois and Pennsylvania found that suspension of benefits
was inappropriate where beneficiaries voluntarily participated in treatment programs
that they could choose to leave, even if those programs were hosted at correctional
facilities. PR 15-126 Community Based Correctional Center Placement During Supervised
Release, available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/1506805016 (last visited Apr. 25, 2018);
PR 06-132 S2D3B-6, Determining Whether the Benefits of A~ SSN ~ Should Have Been Suspended
after October 24, 2005, available at:
https://secure.ssa.gov/apps10/poms.nsf/lnx/1506805042 (last visited Apr. 25, 2018).
Here, the circumstances of the NH’s confinement are similar to those in Wilkins and the Missouri and Texas opinions. The NH was ordered into custody by the VTC judge
and then ordered to undergo treatment at the E~ County Jail. His participation was
not voluntary, and he was confined until he completed the program. These circumstances
satisfied the criteria for suspending the NH’s benefits under Section 402(x) of the
Act.
Conclusion
A beneficiary’s Title II benefits cannot be suspended solely because he or she participates
in the VTC or receives a VTC sanction. Instead, agency staff should apply the relevant
POMS on a case-by-case basis to determine whether a suspension of benefits is appropriate
under the Act. Here, the NH’s 111-day confinement in the E~ County Jail satisfies
the Act’s criteria for a suspension of benefits.