As part of an agreement reached in a Balzi-Brogan class action suit brought against the State of New York Office of Mental Health (OMH) and the Social Security Administration (SSA), SSA is required to issue instructions to field offices in New York concerning the appointment of OMH as a representative payee. In the suit, the plaintiffs argued that SSA failed to adequately follow its own representative payee (RP) policies and procedures and that SSA routinely appointed the OMH as a RP so they could satisfy care and treatment charges even when a more suitable RP is available.

Special instructions were issued for use when OMH files to be RP. All field offices (FOs) in New York State must follow these instructions. Failure to comply could jeopardize the settlement reached in this case.

All RP appointments shall be guided by the principles of selecting payees who will best serve the interest of the beneficiary following the order of preference. An appointed RP is required to use benefits only for the benefit of the beneficiary. SSA regulations require a RP to use the beneficiary's benefits in a manner and for the purposes the RP determines, within SSA's guidelines, to be in the best interest of the beneficiary.

When selecting a RP for individuals in the care of OMH, all offices are directed to use guides set out in this POMS Supplement as well as representative payee policies and procedures contained in POMS GN 00502.000 – GN 00504.000 whenever OMH files to be a RP.

1. 1. 

   SSA is responsible for selecting the person (or organization) best suited to be a RP, as described in GN 00502.100.
   
   When OMH files to be representative payee for a beneficiary, have them identify all known relatives and friends of that beneficiary. Fully pursue any payee leads for those identified by OMH (or by means described in GN 00502.100) who would be higher on the payee preference list (e.g. relatives or legal guardians who demonstrate strong concern).

2. 2. 

   SSA will use the appropriate representative payee preference list as a guide in the payee selection process, as described in GN 00502.105.

3. 3. 

   Prior to appointing OMH as RP, SSA will consider all evidence presented by the patient who challenges the need for a RP. Expert opinion will not necessarily be given more weight than any factual or lay evidence presented (GN 00502.020 - .060).

4. 4. 

   For post entitlement actions, SSA will not appoint OMH as RP if the beneficiary's current payee is complying with all RP responsibilities, unless it is in the best interest of the beneficiary (GN 00504.100).

5. 5. 

   SSA will not consider nonpayment of institutional care and treatment charges in and of itself as a basis for a change of RP. Rather, the court settlement requires that SSA will consider nonpayment of institutional care and treatment charges as a factor to be considered (in addition to the beneficiary's other current and foreseeable future needs, the projected length of confinement and likelihood of discharge, the amount of conserved funds required, etc.) in determining if a change of RP is warranted.
   
   SSA regulations permit OMH to use some benefits to satisfy care and treatment charges. A RP is permitted to use benefits to pay for items that will aid in the beneficiary's recovery or release from an OMH facility or to pay expenses for personal needs which will improve the beneficiary's condition while in an OMH facility.
   
   Under current federal law, OMH cannot sue a Social Security beneficiary to collect present or accumulated Social Security benefits in order to satisfy care and maintenance charges or otherwise require patients to use Social Security benefits to satisfy care and treatment charges.

6. 6. 

   Whenever OMH is selected over another applicant who filed a SSA-11, fully document your reasons on the relationship special text screen (RLST) in the Representative Payee System (RPS). In addition, whenever an organizational RP is appointed, document that a better-qualified RP was not available (GN 00502.183).

7. 7. 

   If OMH is selected to serve as RP, send a formal advance notice POMS GN 00503.100ff) to the beneficiary (or legal guardian) using their specific mailing address. OMH will provide the beneficiary's full mailing address, including street address, building, room, ward and/or floor number. If OMH cannot provide a specific address, advance notice will be sent to the beneficiary at the OMH facility where the beneficiary resides. This would also apply when the payee change goes from one state/local mental (SLM) facility to another. A copy of an advance notice produced from the RPS is stored in ORS.

8. 8. 

   If a protest is received from the beneficiary concerning the need for a RP or the selection of OMH, it must be processed in accordance with policy set out in GN 00503.120. If the protest is received before the appointment is effectuated, the protest must be resolved before the appointment is processed. If the beneficiary alleges non-receipt of the advance notice, treat the protest as timely and process accordingly.
   
   A competent beneficiary may challenge the need for a RP (capability decision) or the designation of a particular person or organization to serve as their RP at any time.

9. 9. 

   The inappropriate use of benefits may serve as a basis to remove a current RP and appoint a successor RP. Fully develop and discuss the situation with the RP as described in GN 00602.130.
   
   The misuse of funds by a RP will serve as a basis to remove the current RP and appoint a successor RP. All allegations of misuse should be investigated fully (GN 00604.020ff).

10. 10. 

    If OMH is appointed as RP, SSA will secure an annual RP accounting, unless the facility participates in the state onsite program, in which case SSA will conduct a tri-annual site visit (GN 00605ff).

11. 11. 

    Within 5 business days of learning of a firm date that a beneficiary will be discharged from an OMH facility, the OMH will notify and provide SSA with information needed to prepare a capability determination and an updated list of the beneficiary's relatives and friends. If the beneficiary is determined to be capable, SSA will take actions necessary to make direct payment to the beneficiary.
    
    If SSA determines that the beneficiary is still incapable, SSA will make every reasonable effort to locate a new RP, including the use of the list provided by the OMH. If SSA is unable to locate a new RP, the OMH may continue to serve as RP for one additional month. SSA then will initiate direct payment, unless it is precluded. (See below, refer to GN 00502.010). If by the second month after discharge SSA is still unable to locate a new payee and cannot effectuate direct payment even though it is permitted (example, SSA is not able to secure a SSA-11 from the beneficiary), SSA will authorized OMH to release to the beneficiary the equivalent of one month's benefit from conserved funds in their possession. To accomplish this, fax to OMH an “Authorization to Release Conserved Funds” (Attachment 1). See Attachment 2 for contact names and fax numbers.)
    
    If direct payment to the beneficiary is precluded (legally incompetent or under age 15) and a new payee has not been found, the OMH may continue to serve as RP for 1 additional month. After that benefits will be suspended pending the development of a new suitably RP.

12. 12. 

    When conserved funds are returned to SSA, they will be reissued to the new RP or to a beneficiary in direct pay (when found capable) as described in GN 00603.070.

13. 13. 

    When SSA is notified that a beneficiary is discharged as a 'missing person', SSA may allow OMH to continue to be RP for one additional month. If the beneficiary's whereabouts remain unknown, suspend benefits. When the beneficiary is located, reinstate benefit payment and/or develop for a new RP, as appropriate.

Each OMH facility is a separate RP. Attachment 2 contains the names, addresses and key contact person of facilities that serve as RP for Social Security and/or Supplementary Security Income benefits. I reviewed this list against the RPS and noted the discrepancies as indicated.

AUTHORIZATION TO RELEASE SSA FUNDS

 

Date: ________________

 

You are hereby authorized to release a one-time payment equivalent to one month's social security benefit, totaling $ (amount) , to (name of beneficiary), social security number (SSN) from this beneficiary's conserved funds.

 

_______________________________

(Name of Field Office Employee)

 

___________________________________

(Name and Address of SSA Field Office)

NYS OFFICE OF MENTAL HEALTH

BALZI-BROGAN COORDINATORS