BASIC (01-09)

DI 28065.001 CDR Considerations for Individuals Convicted of a Felony

Citations:

Social Security Act §, Section 223(d)(6)

Regulations 20 CFR 404.1506;

Social Security Rulings SSR 83-21

A. Definition of terms

1. Felony

An offense is considered a felony if:

  1. It is a felony under applicable law; or

  2. 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.

2. Confinement

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.

3. Conviction

In general, a conviction is the judgment in a criminal case that an individual is guilty of a crime. It may result from:

  • a verdict or finding of guilty,

  • a plea of guilty, or

  • a plea of nolo contendere (no contest).

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:

  1. 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.

  2. 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.<