TN 4 (12-06)
GN 02613.810 The Effect of the Fowlkes Acquiescence Ruling (Fowlkes AR) on Title II Fugitive Felon Suspensions
A. Policy – Evaluating Fugitive Felon Title II Suspensions Under The Fowlkes AR December 6, 2005 and Later
1. Fowlkes AR Policy for Processing Title II Cases
On or after December 6, 2005, the Social Security Administration (SSA) will no longer suspend benefits to beneficiaries who reside in the Second Circuit (Connecticut (CT), Vermont (VT) or New York (NY)) only because they have an unsatisfied felony warrant for more than 30 continuous days for a crime, or attempted crime. Title II felony warrant payment suspensions were previously made on this basis under the instructions in GN 02613.010.
NOTE: Continue to process payment suspensions for outstanding warrants for probation and parole violations as indicated in GN 02613.010. They are not affected by the Fowlkes decision and will be processed in accordance with existing policies and procedures.
IMPORTANT: The Second Circuit stated in the Fowlkes decision that to consider a person to be a fugitive felon SSA must have some evidence that a person knows that there is an outstanding felony arrest warrant and the outstanding felony warrant was issued on the basis that he or she was fleeing from justice.
2. Effective Date For Applying The Fowlkes AR
The Fowlkes AR applies to SSA determinations or decisions issued on or after December 6, 2005. See GN 02613.830A.2 for further information on the administrative review process for Title II.
NOTE: SSA has coded cases under EM-06001 SEN dated January 6, 2006 and EM-06011 SEN dated February 23, 2006. SSA will apply the Fowlkes AR during the readjudication process to coded cases as explained in the AR. See GN 03501.015C for instructions on the general readjudication process under an AR.
3. Determinations or Decisions Made at The Administrative Review Process
The Fowlkes AR applies at all levels that is the initial and throughout the administrative review process (i.e., reconsideration, ALJ hearing and Appeals Council review). See GN 03101.001 for further explanation of the levels of administrative review. See GN 02613.830A.2 for further information on the administrative levels of review in regard to the Fowlkes AR.
4. Outstanding Felony Warrant
SSA will not determine fugitive felon status based on the sole existence of an outstanding felony warrant. See GN 02613.100A.2. and GN 02613.820A.3. for identifying whether a Title XVI recipient or Title II beneficiary has an outstanding felony warrant based on information contained in the Fugitive Felon System Control File (FFSCF). See SI 00530.800B.1. for an explanation of treatment of a felony warrant for Title XVI case processing. See GN 02613.820A.3. for information on felony warrants for Title II case processing under the Fowlkes AR.
5. Residence of Beneficiary
For purposes of the Fowlkes AR, residence is the primary location where a beneficiary lives or lived. Mere absence from the residence, without intending to move away (e.g., visit, transitory stay at a season home) does not change the individual’s residence. The Fowlkes AR only applies to individuals who reside or resided within the Second Circuit (i.e., Connecticut (CT), New York (NY), or Vermont (VT) when they received the initial or administrative review fugitive felon determination on or after December 6, 2005. If the beneficiary moves in or out of the Second Circuit after December 6, 2005, the scope of any relief under the Fowlkes AR will be affected.
See GN 02613.830A.3 for specific information regarding the Title II beneficiary residency requirements for Fowlkes AR case processing.
6. Scope of Fowlkes AR Relief
The earliest SSA notice of fugitive felon suspension that is on or after December 6, 2005 is the earliest potential effective date for Fowlkes AR readjudication relief. See GN 02613.810A.7 for additional information on readjudication cases.
See GN 02613.830A.4. for information on the date to use when consideration relief under the Fowlkes AR for Title II case processing.
7. Readjudication Cases
If SSA determined or decided that a Title II beneficiary was a fugitive felon because of an outstanding felony warrant for more than 30 continuous days and suspended benefit payments on or after December 6, 2005 for this reason, the beneficiary may request readjudication under the Fowlkes AR. The beneficiary may request Fowlkes AR readjudication in response to a SSA Fowlkes AR notice or on his/her own initiative. In all cases, the beneficiary must provide SSA with information on how the Fowlkes AR could change the fugitive felon nonpayment determination or decision. (See GN 03501.001C.3 for general information the beneficiary must provide to SSA to request relief under and AR and GN 02613.830B for information required for requesting relief under the Fowlkes AR.) SSA will evaluate the information provided by the beneficiary and determine if relief can be granted under the Fowlkes AR.
IMPORTANT: SSA started coding cases based on information provided in EM-06001 SEN dated January 6, 2006 and EM-06011 SEN dated February 23, 2006. These cases were coded in the anticipation that they might be affected by the Fowlkes AR and be subject to readjudication by SSA. See GN 03501.015 for additional information on readjudication under an AR. SSA will send a Fowlkes AR notice to individuals whose cases have been coded. The notice will provide the beneficiary with information about the Fowlkes AR and the right to request readjudication under the AR. It is not necessary for a beneficiary to receive a notice from SSA in order to request readjudication (i.e., relief) based on the Fowlkes AR. Instructions for readjudication processing is found in GN 02613.830C.
See GN 02613.830A.5.c for Title II Fowlkes AR readjudication inquiries.
B. Policy - Criteria for Evaluating if The Fowlkes AR Applies to a Title II Beneficiary Request for Relief
When SSA receives a request for relief (i.e., readjudication) under the Fowlkes AR, either via a request received directly at an SSA office or via a reply to SSA’s Fowlkes AR readjudication notice to the beneficiary the criteria found in GN 02613.810B.1 (fully favorable Fowlkes AR relief) or GN 02613.810B.2 (partially favorable Fowlkes AR relief) will be used.
1. Fully Favorable Relief Under The Fowlkes AR
If the beneficiary meets all the conditions listed below, then SSA can resume benefits to the beneficiary effective with the month of the initial fugitive felon suspension and ongoing when:
the beneficiary resided (see GN 02613.810A.5. for a description of residency under the Fowlkes AR) in CT, NY, or VT at the time the fugitive felon suspension/denial determination or administrative review decision about the suspension was made (see GN 02613.830A.3 for more information on determining residency when processing requests for relief under the Fowlkes AR), and
the initial suspension or administrative appeal denial or determination notice that SSA sent to the beneficiary was dated December 6, 2005 or later. (See GN 02613.830A.4. for more information on the effective date for applying a request for relief under the Fowlkes AR.), and
SSA made the initial determination or the administrative review decision to suspend Title II benefits based on the fact that the beneficiary had an unsatisfied warrant for more than 30 continuous days for a crime or an attempted crime that is a felony or, in jurisdictions that do not classify crimes as felonies, a crime that is punishable by death or imprisonment for more than 1 year (regardless of the actual sentence imposed), and
the beneficiary continued to reside in CT, NY or VT through the date he/she requests relief under the Fowlkes AR and when SSA evaluates and makes its Fowlkes AR determination, and
SSA has not applied the Fowlkes AR on the identical issue (same time period, same issue (i.e., fugitive felon payment suspension)) for this beneficiary previously.
EXAMPLE: Beneficiary A received a Title II fugitive felon suspension notice dated March 20, 2006, for an outstanding felony warrant suspending his benefits from December 2005. Beneficiary A has resided in Burlington VT for the past 20 years. The SSA suspension notice went to the Burlington VT address. This fact was based on reviewing the mailing address on the MBR and examining Beneficiary A’s suspension and overpayment notice via the Online Notice Retrieval System. Beneficiary A contacted SSA on April 10, 2006, to protest the suspension. Beneficiary A states that he believes the Fowlkes AR applies to his felony warrant suspension. Beneficiary A completes a reporting statement (SSA-795, Statement of Claimant or Other Person), attesting to his claim that the Fowlkes AR should apply to his suspension. Beneficiary A’s signed and dated SSA-795 statement states:
He believes he should be granted relief from suspension of his Title II benefits under the Fowlkes AR because:
he has not requested relief under the Fowlkes AR previously, and
he resided in Vermont effective December 6, 2005 and later; and SSA’s suspension notice regarding his outstanding felony warrant was dated March 20, 2006; and
SSA suspended payments effective from December 2005 because he had an outstanding felony warrant.
After the SSA Field Office verifies these facts in the statement, SSA can resume benefits from the date of the initial suspension (i.e., December 2005) under the Fowlkes AR. On May 22, 2006, SSA will resume benefits to Beneficiary A effective December 2005, the date SSA first suspended his benefits because he had an outstanding felony warrant and Beneficiary A will continue to receive benefits while he resides in the Second Circuit (i.e., CT, NY, VT)
2. Partially Favorable Relief Under the Fowlkes AR
If the beneficiary meets all the conditions listed below but moved out of the Second Circuit after December 6, 2005, (i.e., did not reside in CT, NY or VT at some point after December 6, 2005), then SSA can resume benefits to the beneficiary effective with the month of fugitive felon suspension through the month before the month the beneficiary moved out of the Second Circuit; (i.e, the States of CT, NY or VT). The beneficiary must meet the following conditions:
the beneficiary resided (see GN 02613.810A.5 for a description of residency under the Fowlkes AR) in CT, NY, or VT at the time the fugitive felon suspension/denial determination or administrative review decision was made (see GN 02613.830A.3 for more information on determining residency when processing requests for relief under the Fowlkes AR), and
the initial suspension or administrative appeal denial or determination notice that SSA sent to the beneficiary was dated December 6, 2005 or later. (See GN 02613.830A.4 for more information on the effective date for applying a request for relief under the Fowlkes AR.), and
SSA made the initial determination or the administrative review decision to suspend Title II benefits based on the fact that the beneficiary had an unsatisfied warrant for more than 30 continuous days for a crime or an attempted crime that is a felony or, in jurisdictions that do not classify crimes as felonies, a crime that is punishable by death or imprisonment for more than 1 year (regardless of the actual sentence imposed), and
SSA had not applied the Fowlkes AR on the identical issue (same time period, same issue (i.e., fugitive felon payment suspension)) for this beneficiary previously.
When the beneficiary contacts SSA to request relief under the Fowlkes AR and he/she did not reside in any of the States in the Second Circuit (CT, NY or VT) at some point after December 6, 2005; SSA will only consider the possibility of resuming benefits for months that the beneficiary resided within the Second Circuit (i.e., CT, NY or VT). SSA will reinstate Title II benefits for a closed period for these months. Fugitive felon payment suspension will again apply for any month that the beneficiary no longer resided within the Second Circuit states (CT, NY or VT) or out of the country.
EXAMPLE: Beneficiary B received a Title II fugitive felon suspension notice dated April 20, 2006, suspending his benefits beginning January 2006. Beneficiary B has resided in New Haven CT and has lived there for the past 2 years. The SSA suspension notice went to the New Haven CT based on SSA reviewing the address on the MBR and examining the suspension notice on the Online Notice Retrieval System. Beneficiary B moved from New Haven CT on May 3, 2006 to reside with his brother in Bangor ME. Beneficiary B, who never requested relief under the Fowlkes AR previously, contacted the SSA DO in Bangor ME on May 15, 2006 to protest the suspension of his Title II benefits. Beneficiary B completes an SSA-795 statement attesting to his claim that the Fowlkes AR should apply to the suspension. Beneficiary B’s signed and dated statement states:
He believes he should be granted relief from suspension of his Title II benefits under the Fowlkes AR because:
he resided in New Haven CT effective December 6, 2005 and later and has not requested relief under the Fowlkes AR previously, and
the SSA suspension notice regarding his outstanding felony warrant from SSA was dated April 20, 2006 when he lived in New Haven CT, and
the suspension was effective from January 2006 because he had an outstanding felony warrant; and
he currently resides in Bangor ME, having moved there on May 3, 2006 and he states that he will continue to reside there indefinitely.
Based on the above statement and verification by the SSA FO of the facts in the statements, SSA can reinstate benefits for the months before the month Beneficiary B moved out of the Second Circuit under the Fowlkes AR. SSA did so on June 20, 2006.
SSA will reinstate benefits to Beneficiary B for the closed period of fugitive felon suspension from January 2006 until April 2006 when Beneficiary B resided in CT. Beneficiary B requested Fowlkes AR relief while residing outside the Second Circuit. Effective May 2006 when Beneficiary B moved to ME, benefits be suspended because Beneficiary B resides outside of the Second Circuit and continues to have an outstanding felony arrest warrant.
C. Procedure – Beneficiary Changes Residence and Moves Out Of or Into The Second Circuit
1. Beneficiary Moves Out of The Second Circuit
See GN 02613.850C for specific information regarding Fowlkes AR case processing when the beneficiary moves out of the Second Circuit.
2. Beneficiary Moves Into The Second Circuit Where The Fowlkes AR is Applicable
See GN 02613.850D for additional processing instructions for beneficiaries or claimants who move into the Second Circuit where the Fowlkes AR is applicable.
D. References - Fowlkes AR Inquiries and Case Processing Instructions
1. Fowlkes AR Inquiries Received at SSA Offices
For specific instructions on handling inquiries received at SSA offices regarding the Fowlkes AR see the list below:
See the instructions in GN 03501.020 for general information on handling inquiries received at SSA offices regarding the contents of the acquiescence rulings. See GN 02613.830A.5. for Fowlkes AR inquiries received at SSA offices.
NOTE: The Fowlkes AR was published in the Federal Register on April 6, 2006. (Federal Register/Vol. 71, No. 66, page 17,551/Thursday, April 6, 2006/Notices).
See instructions in GN 02613.830B.1. for handling inquiries received by SSA offices effective December 6, 2005 or later requesting relief under the Fowlkes AR.
See instructions in GN 02613.830C. for instructions on readjudication under the Fowlkes AR.
2. Case Processing Instructions Under The Fowlkes AR
See the list below for information regarding specific processing instructions under the Fowlkes AR:
See SI 00530.800 for Title XVI Fowlkes AR case processing instructions.
See GN 02613.800 for general information on the Fowlkes AR ruling.
See GN 02613.810 through GN 02613.850 for processing cases under the Fowlkes AR effective on or after December 6, 2005.
See instructions in GN 02613.830C for readjudicated cases (i.e., CATS coded cases) identified by SSA offices effective December 6, 2005 through April 5, 2006 or later and processing the coded cases. (Cases were coded in anticipation of the Fowlkes AR in accordance with EM-06001 SEN dated January 6, 2006 and EM-06011 SEN dated February 23, 2006.)