TN 3 (12-07)

PR 04505.047 Tennessee

A. PR 07- 197 Request for Waiver of Child Survivor's Benefits by Adoptive Parents - Tennessee

DATE: August 21, 2007

1. SYLLABUS

The child became entitled to and received Social Security Survivor's benefits upon the death of his natural parent. He was thereafter adopted. The adoptive parents secured state Adoption Assistance (AA) benefits for the child and applied for a waiver of the SSA benefits. They believe the AA benefits will be reduced if they also receive SSA benefits. Although there would be no change in total benefits received if both SSA and AA benefits are paid, it would be simpler for the parents to deal with a single program. Social Security Administration policy only allows waiver of Title II benefits when waiver secures some benefit to the child. In this case, the child could receive both SSA benefits and adoption assistance for the same period, but the amounts would be offset so that the total amount of benefit paid to the adoptive parent payees for the child remains the same. Thus, waiver confers no benefit on the child. Consequently, the request to waive the child's benefits should be denied.

2. OPINION

QUESTION

You asked whether parents could waive Social Security Survivor's Benefits for an adopted child in light of the child's eligibility for higher state adoption assistance benefits in Tennessee.

ANSWER

No. Social Security Administration policy only allows waiver of Title II benefits when waiver secures some benefit to the child. In this case, the child could receive both SSA benefits and adoption assistance for the same period, but the amounts would be offset so that the total amount of benefit paid to the adoptive parent payees for the child remains the same. Thus, waiver confers no benefit on the child.

BACKGROUND

According to information made available to us, the child became entitled to and received Social Security Survivor's benefits upon the death of his natural parent. He was thereafter adopted by Russell and Debbie D~. The parents have secured state Adoption Assistance (AA) benefits for the child and applied for a waiver of the SSA benefits. SSA has not made any payments to them. They believe the AA benefits will be reduced if they also receive SSA benefits. The parents expressed orally to Reba M~, SSA Operations Supervisor, their understanding that there would be no change in total benefits received, but that it would be simpler for them to deal with a single program.

DISCUSSION

Section 473 of the Social Security Act (Act), enables states to furnish financial adoption assistance to individuals who adopt children with special needs. See Act § 473, 42 U.S.C. § 673. A child may qualify as a special needs child under a variety of situations, such as Supplemental Security Income eligibility, various foster care situations, and criteria developed by the participating states. See Act § 473(a)(2)(A). Tennessee participates in the AA program. The Tennessee Department of Children Services (DCS) has the power to administer the program and establish rules and regulations for the program. See TENN. CODE ANN. § 37-5-106(12), (13) (2007). Any recipient of AA "shall be deemed to have assigned to the state any rights to support from any other person . . . ." TENN. CODE ANN. § 71-3-124 (a)(1) (2007). The State of Tennessee may recoup AA benefits equal to the amount of Title II benefits paid to a child who concurrently receives AA benefits. See Dick v. Comm'r of Tenn. Dep't of Children's Servs., No. M2003-01073-COA-R3-CV, 2004 WL 2363654, at *4 (Tenn. Ct. App. Oct. 20, 2004).

A representative payee may request waiver of benefits, and the waiver will be "honored if found to be in the beneficiary's best interests." Program Operations Manual System (POMS) GN 00504.260(A)(1). The request must be in writing and should be approved if the payee (1) "fully understands the consequences of the request," and (2) "convincingly explains how the request, if approved, will secure some advantage to or further the interests of the beneficiary." POMS GN 00504.260(A)(2).

In this case, the parents' application contains no explanation whatsoever as to how the waiver would secure some advantage to or further the interest of the child and on that basis alone the application should be denied. The adoptive parents expressed orally that they understood there would be no change in total benefits received, but that it would be simpler for them to deal with a single program. This is not a benefit to the child. Furthermore, it is not clear that an assignment of rights to DCS would be unduly burdensome.

Mary A S~
Acting Regional Chief Counsel

By:__________________________
Rollin M~
Assistant Regional Counsel


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1504505047
PR 04505.047 - Tennessee - 12/03/2007
Batch run: 11/29/2012
Rev:12/03/2007