QUESTION PRESENTED
This memorandum responds to your request for an opinion on whether the Social Security
Administration (SSA) can suspend Title II benefits to an individual whom a Texas court
commits to Texas Civil Commitment Center (TCCC) pursuant to a court order finding
the individual is a sexually dangerous person or sexual predator (hereinafter combined
referred to as “SDP”).[1] You asked broadly whether TCCC is a facility for SDPs (SDP facility) to determine
whether SDP nonpayment provisions of Title II of the Social Security Act (Act) apply,
but you also presented this issue for the specific purpose of determining whether
SSA should continue to suspend D~’s (the number holder’s) benefits.
ANSWER
For Title II purposes, SSA must suspend benefits to an SDP when the SDP is indigent[2] and resides at an SDP facility because the SDP is confined at public expense. TCCC
is an SDP facility. SSA must continue payments to an SDP who is not indigent and who
resides in TCCC because a non-indigent SDP is responsible for the cost of his or her
housing, treatment, and tracking service at TCCC, and as a result, is not confined
“at public expense” as the Act’s SDP nonpayment provisions require. Accordingly, in
determining whether SSA should continue to suspend the number holder’s Title II benefits,
SSA must determine if he is indigent
BACKGROUND
In June 2015, the Texas Legislature amended the Texas Health and Safety Code, Chapter
841, regarding civil commitment of sexually violent predators.[3] See Tex. Health & Safety Code Ann. §§ 841.001-.151 The amendment created the Texas Civil
Commitment Office (TCCO) and required TCCO to develop and implement a tiered treatment
program for persons civilly committed as sexually violent predators. See id. at § 841.0831. The amendment also required TCCO to operate, or contract with a vendor
to operate, one or more facilities to house the civilly committed sexually violent
predators.[4] See id. at § 841.0832. As a result, TCCO established TCCC, a 382-bed facility for sexually
violent predators, and contracted with Correct Care Recovery Solutions to operate
the program.[5] TCCC’s treatment program provides its residents[6] with tiered inpatient and outpatient sex-offender treatment services.
For purposes of Title II benefits,[7] SSA suspends social security benefits to SDPs in states that have laws expressly
providing for court ordered confinement of SDPs. Consequently, SSA requested an opinion
on whether an individual whom a Texas court commits to TCCC meets the criteria for
suspension of Title II benefits under the SDP nonpayment provisions of the Act.[8]
ANALYSIS
Federal Law: Title II Benefits and the Sexually Dangerous Person Nonpayment Provision
The Ticket to Work and Work Incentives Improvement Act of 1999 amended section 202(x)
of the Social Security Act (Act) to prohibit the payment of Title II benefits to prisoners
in specific situations and included a provision prohibiting payment of benefits to
an SDP confined in an institution at public expense. See Ticket to Work and Work Incentives Improvement Act of 1999, Pub. L. No. 106-170, §
402(d), 113 Stat. 1860, 1910 (1999) (effective April 1, 2000) (provision concerning
“continued denial of benefits to sex offenders remaining confined to public institutions
upon completion of prison term”). This provision was “intended to limit the drain
on scarce Social Security resources by persons whose basic needs are already being
provided for by the State.” Dawley v. Barnhart, 2006 WL 2085976, at *2 (D.Mass. July 26, 2006) citing Davis v. Bowen, 825 F.2d 799, 801 (4th Cir. 1987) (the nonpayment provision of section 202(x) “rationally
promotes the legitimate underlying congressional policy goal of conserving scarce
social security resources where a prisoner’s basic economic needs are provided from
other public sources”); Artz v. Barnhart, 214 F.Supp.2d 459, 467-468 (D.N.J. 2002) (Congress’s intent in amending section
202(x) was to prevent a prisoner from being “doubly compensated,” and that “[w]hen
an individual is not confined at public expense, he or she is entitled to receive
monthly benefits; however, when an individual is confined at public expense, he or
she is not entitled to monthly benefits,” which “clearly expresses the concern that
Congress had in protecting against the draining of public funds”) aff’d 330 F.3d 170 (3rd Cir. 2003).
Specifically, under Title II of the Act, SSA does not pay monthly benefits to an individual
who meets all of the following criteria:
(1) the individual had to have been confined in a jail, prison, or other penal or
correctional facility pursuant to a conviction of a criminal offense;
(2) the criminal offense had to involve sexual activity; and
(3) upon completion of the prison conviction/sentence, pursuant to a court order,
the individual was immediately transferred and confined in an institution[9] at public expense because the individual was determined to be a sexually dangerous
person, a sexual predator, or a similar finding.
See 42 U.S.C. § 402(x)(1)(A)(i), (iii). The Program Operations Manual System (POMS) refers
to these provisions of the Act as the sexually dangerous person nonpayment provisions.
Pursuant to the sexually dangerous person nonpayment provisions of the Act, the POMS
instructs SSA to suspend Title II benefit payments to an individual when a court finds
the individual to be an SDP based on state law, and the court issues an order confining
the individual to an institution for more than thirty continuous days at public expense
immediately following the individual’s completion of his criminal prison sentence.
See POMS GN 02607.350(A)-(B). The POMS defines “sexually dangerous person” as “a person
with a mental abnormality or personality disorder who is likely to engage in sexual
offenses if released from confinement.” See id. at GN 02607.001(B)(9). State laws generally have the following requirements for considering a person
to be an SDP: a conviction for a sexually violent crime, or conduct that would be
a crime; a mental abnormality or personality disorder (pedophilia, rape, etc.); and
the offender is likely to reoffend unless confined in a secure facility (mental institution
or special commitment center). See id. at GN 02607.350(A). SSA will enforce the Act’s sexually dangerous person nonpayment provision only
in those states that have laws expressly providing for court ordered confinement of
SDPs. See id.
Texas Law Regarding the Commitment of Sexually Violent Predators
The Texas Legislature’s June 2105 amendment to the Texas Health and Safety Code, Chapter
841, required TCCO to develop a tiered program for transitioning a committed person
from a total confinement facility to less restrictive housing and supervision and
eventually release from civil commitment. See Tex. Health & Safety Code Ann. §§ 841.001841.0831. Prior to civil commitment and
as part of the civil commitment procedure, the Texas Department of Criminal Justice
(TDCJ)[10] must give notice to a multidisciplinary team of the anticipated release of a person,
who is serving a sentence at a TDCJ correctional facility for a sexually violent offense
and who may be a repeat sexually violent offender. See id. at § 841.021(a). The multidisciplinary team must determine whether the person is
a repeat sexually violent offender and is likely to commit a sexually violent crime
and whether the person should undergo behavioral abnormality assessment. See id. at § 841.022(c). If the multidisciplinary team recommends behavioral abnormality
assessment, TDCJ must have an expert conduct a clinical assessment to determine whether
the person has a behavioral abnormality. See id. at § 841.023(a). If the person suffers from a behavioral abnormality, TDCJ must give
notice to the attorney representing the state for the county (state attorney) in which
the person was most recently convicted of a sexually violent crime. See id. at § 841.023(b). If the state attorney files a petition with the court alleging the
person is a sexually violent predator,[11] a judge must conduct a trial and determine whether, beyond a reasonable doubt, the
person is a sexually violent predator. See id. at §§ 841.041(a), 841.061(a), 841.062(a). If the judge or jury finds the person is
a sexually violent predator, the judge must civilly commit the person for treatment
and supervision. See id. at § 841.081(a). As part of the civil commitment, the judge must impose the requirement
that the person reside as per TCCO’s instructions.[12] See id. at § 841.082(a)(1). The commitment order is effective immediately on entry of the
order, except that the treatment and supervision begins on the person’s release from
a secure correctional facility[13] and continues until the person’s behavioral abnormality has changed to the extent
that the person is no longer likely to engage in a predatory act of sexual violence.
See id. at § 841.081(a).
Texas law requires the state to pay the reasonable cost of indigent civilly committed
sexually violent predator’s treatment and supervision. See id. at § 841.146(c). However, a civilly committed sexually violent predator, who is not
indigent, is responsible for the cost of housing, treatment, and tracking service,
and monthly must pay TCCO the amount that is necessary to defray the cost of providing
the housing, treatment, and service at TCCC. See id. at. § 841.084(a). As addressed below, section 841.084(a) is important to our consideration
of whether a non-indigent SDP confined to the TCCC is confined “at public expense.”
TCCC Program
TCCO is a state agency that provides oversight of the sex offender civil commitment
program under the Texas Health and Safety Code, Chapter 841. See Tex. Gov’t Code Ann. §§ 420A.002(a), 420A.010; Tex. Health & Safety Code Ann. § 841.007.
TCCO established TCCC, a 382-bed “total confinement facility,” to supervise and treat
civilly committed sexually violent predators. See http://www.correctcarers.com/texas-civil-commitment-center/ (last searched March 4, 2016); see also Mitchell v. State, 473 S.W.3d 503, 509-510 n.10 (Tex. App. - El Paso 2015, no pet.) (noting that TCCO
created a tiered program allowing a civilly committed sexually violent predator to
be placed in a “total confinement facility”). TCCC’s treatment program provides its
residents (the civilly committed sexually violent predators) with sex offender treatment
services designed to prepare them for the safe return to the community. See TCCC Resident Handbook, p. 2. TCCC divides its treatment program into five tiers,
implements the first four tiers within the confines of TCCC, and implements the last
tier under community supervision, which is in less restrictive housing. See Tex. Health & Safety Code Ann. § 841.0831 (tiered program); TCCC Resident Handbook,
p. 7.
Whether SSA must Suspend Title II Benefits to Individuals Who Reside in TCCC
As noted above, for purposes of Title II benefits, an individual is not eligible for
monthly Title II benefits when, immediately upon completion of confinement in a jail,
prison, or other penal or correctional facility pursuant to a conviction of a criminal
offense involving sexual activity, a court orders the individual confined in an institution
at public expense pursuant to a finding that he or she is a sexually dangerous person,
a sexual predator, or a similar finding (SDP). See 42 U.S.C. § 402(x)(1)(A)(iii); POMS GN 02607.350(A)-(B). In Texas, for a court to civilly confine a person in an institution (TCCC)
as a sexually violent predator, while the person is in a correctional facility, the
court must find the person is a repeat sexually violent offender, has been convicted
of one or more sexually violent offense, and has a behavioral abnormality that makes
him or her likely to engage in a predatory act of sexual violence. See Tex. Health & Safety Code Ann. §§ 841.003(a), 841.061(a)(2), 841.062, 841.081. If
the court finds the person is a sexually violent predator, effective immediately,
the court civilly commits the person for treatment and supervision as per TCCO’s instructions.
See id. at § 841.081. TCCO coordinates direct transfer from the correctional facility to
TCCC immediately upon release from the secure correctional facility. See id. at § 841.081. Thus, Texas has a law expressly providing for court ordered confinement
of an SDP, and the civil commitment statutory definition and procedure for finding
a person a sexually violent predator meets SSA’s statutory requirements of an SDP
under the Act. See 42 U.S.C. § 402(x)(1)(A)(iii); POMS GN 02607.350(A)-(B).
Our inquiry next goes to whether Texas civilly confines a sexually violent predator
in TCCC at “public expense.” See 42 U.S.C.A. § 402(x)(1)(A)(iii) (“confined by court order in an institution at public expense”) (emphasis added); POMS GN 02607.350(B)(1)(b) (“Suspend benefits when a court: declares that the beneficiary is an SDP;
and issues an order confining a beneficiary to an institution or [special commitment
center] for more than 30 continuous days at public expense.”) (emphasis added).
As noted above, Texas law requires the State to pay the reasonable costs of a civilly
committed sexually violent predator’s treatment and supervision at TCCC. See Tex. Health & Safety Code Ann. § 841.146(c). However, Texas law also provides that
a civilly committed sexually violent predator, who is not indigent, is responsible
for the cost of housing, treatment, and tracking service at TCCC.[14] See id. at § 841.084(a). Therefore, under Texas law, only an indigent civilly committed sexually
violent predator resides in TCCC “at public expense.” Though the Act, Social Security
regulations, and POMS do not elaborate on the “public expense” requirement, the plain
language of the SDP nonpayment provision of the Act clearly states that it applies
where the individual “is confined by court order in an institution at public expense.”
See 42 U.S.C. § 402(x)(1)(A)(iii).[15] Section 841.084(a) clearly provides that a non-indigent SDP is responsible for the
cost of housing, treatment, and tracking service at TCCC. See id. at § 841.084(a). Therefore, based on section 841.084(a) and in the absence of evidence
to the contrary, we believe it is a reasonable interpretation of the law for the agency
to assume that a non-indigent SDP residing at TCCC is not being confined “at public
expense.” Thus, for Title II purposes, SSA must suspend Title II benefits for an indigent
SDP residing at TCCC, but must continue Title II benefits for a non-indigent SDP residing
at TCCC.
CONCLUSION
In our opinion, Texas has a law expressly providing for court ordered confinement
of an SDP. A civilly committed sexually violent predator in Texas meets the definition
of an SDP under the Act. In Texas, sexually violent predators reside in TCCC, a public
institution. Thus, TCCC is an SDP facility. For Title II purposes, civilly committed
sexually violent predators, who are indigent, are confined by court order in TCCC
at public expense. However, civilly committed sexually violent predators, who are
not indigent, are responsible for the cost of housing, treatment, and tracking service
at TCCC and, therefore, are not confined at public expense. Thus, SSA must suspend
Title II benefits to individuals who reside in TCCC and are indigent, but must continue
payments to Title II individuals who reside in TCCC and are not indigent.
If you have questions, or if we may provide further assistance, please contact the
undersigned attorney at (214) 767-4099.
Michael McGaughran
Regional Chief Counsel
By: Ruben Montemayor
Assistant Regional Counsel