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
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.
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.
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
Assistant Regional Counsel