DI 28065.001 CDR Considerations for Individuals Convicted of a Felony
Social Security Act §, Section 223(d)(6)
Regulations 20 CFR 404.1506;
Social Security Rulings SSR 83-21
A. Definition of terms
An offense is considered a felony if:
It is a felony under applicable law; or
In a jurisdiction which does not classify any crime as a felony, it is an offense punishable by death or imprisonment for a term exceeding 1 year.
In general, a jail, prison, or other penal institution or correctional facility is a facility which is under the control and jurisdiction of the agency in charge of the penal system or in which convicted criminals can be incarcerated. Confinement in such a facility continues as long as the individual is under a sentence of confinement and has not been released due to parole or pardon. An individual is considered confined even though temporarily or intermittently outside of the facility (e.g., on work release, attending school or hospitalized). For information on when a title II beneficiary is considered confined in a penal or correctional facility for conviction of a crime for purposes of suspension of title II benefit payments, see GN 02607.000 Prisoner Provisions Title II.
In general, a conviction is the judgment in a criminal case that an individual is guilty of a crime. It may result from:
The status of a criminal case at the time of adjudication of the continuing disability (CD) issue must be determined. The provisions of this subchapter on excluding felony-related and confinement-related impairments in making a CDR determination do not apply unless the title II disability beneficiary is actually convicted of a felony committed after October 19, 1980.
NOTE: A grand jury indictment or any official act by a law enforcement agency merely charging an individual with a felony will not prevent continuing entitlement to or payment of benefits. However, if an individual is convicted of a felony but the conviction is under appeal, the prisoner provisions do apply.
B. Restrictions on Title II disability determinations for convicted felons
Title II determinations of disability for persons convicted of a felony or confined for conviction of a felony are restricted as follows:
Any physical or mental impairment which arises or is aggravated (but only to the extent of the aggravation) in connection with an individual's commission of a felony after October 19, 1980, for which the individual is subsequently convicted, shall not be considered in determining whether the individual is under a disability (or continues to be under a disability) under Title II. This exclusion applies regardless of whether the individual is incarcerated pursuant to conviction. The impairment or aggravation of an impairment must be excluded for the lifetime of the individual.
Any physical or mental impairment that arises or is aggravated (but only to the extent of the aggravation) in connection with the individual's confinement in a jail, prison, or other penal institution or correctional facility pursuant to his or her conviction of a felony committed after October 19, 1980, shall not be considered in determining whether the individual is under a disability (or continues to be under a disability) under Title II for purposes of benefits payable for any month during which the individual is so confined.
NOTE: These restrictions do not apply to Title XVI cases. For information about Title XVI prisoner provisions, see GN 02607.050 - Title XVI Prisoner Provision. If the DDS receives a title XVI only CDR on a felon or prisoner, the DDS must return the file with a “no determination” and inform the FO/PC that benefits should be suspended.
C. Other Title II restrictions affecting prisoners
1. Restriction on Title II students benefits
An individual shall not be considered a “full-time elementary or secondary school student” while that individual is confined in a jail, prison, or other penal institution or correctional facility pursuant to his or her conviction of a felony committed after October 19, 1980.
2. Suspension of Title II benefits to prisoners
For FO instructions on suspending Title II benefit payments to Title II beneficiaries confined to penal institutions for conviction of crimes, see GN 02607.000 Prisoner Provisions Title II.
The provisions on suspending title II benefit payments to prisoners may apply to a title II beneficiary who is confined in a penal or correctional institution for conviction of a crime, including a DIB, CDB, or DWB beneficiary undergoing a CDR. The title II benefit suspension provisions apply independently of the provisions in DI 28065.001B on excluding felony-related and confinement-related impairments. The suspension of benefit payments to DIB, CDB, or DWB beneficiaries while confined for conviction of a felony apply without regard to the date on which the felony was committed or to whether impairments are felony-related or confinement-related. If the possibility of confinement first comes to light during a CDR, the DDS, ALJ, or AC will notify the FO of an individual in pay status and request documentation.
The DDS disability determination and the FO suspension of benefit payments are separate actions. The DDS proceeds with the CDR determination and the FO independently proceeds with the suspension action, if appropriate.
D. CDR required
A CDR is necessary if any of the following conditions apply:
A medical (MIE) diary matures.
The case is selected for MIP, MINE or sample review.
An event raises a disability issue even though the individual is not in pay status because of confinement.