You requested a legal opinion regarding the effect of furloughs on the payment of
benefits to prisoners entitled to Title II and Title XVI benefits in Region V states.
You indicated that differing guidance has been provided to SSA field offices, raising
concern about equal treatment of cases. Also, you would like to know the extent of
documentation necessary if payment is to be made when a prisoner is released on furlough.
For the reasons discussed below, we conclude that, with limited exceptions, furloughs
generally do not affect a prisoner’s status as “confined” or as “a resident of a public
institution” for purposes of suspension of benefits to prisoners under Title II and
Title XVI, respectively. Thus, if the other requirements for suspension are met, a
prisoner’s Social Security benefits can be suspended despite the fact that the individual
has been granted and/or released on furlough.
I. Title II Rules Governing Payment of Benefits to Prisoners
The Ticket to Work and Work Incentives Act of 1999 amended section 202(x) of the Social
Security Act (Act) to prohibit the payment of Title II benefits where an individual
is convicted of a criminal offense and is confined in a penal institution for more
than 30 continuous days.  See Ticket to Work and Work Incentives Improvement Act of 1999, Pub. L. No. 106-170,
§ 402(b), 113 Stat. 1860, 1907 (1999) (effective April 1, 2000). Section 202(x) of
the Act, as amended, provides in pertinent part:
(1)(A) Notwithstanding any other provision of this subchapter, no monthly benefits
shall be paid under this section or under section 423 of this title to any individual
for any month ending with or during or beginning with or during a period of more than
30 days throughout all of which such individual--
(i) is confined in a jail, prison, or other penal institution or correctional facility
pursuant to his conviction of a criminal offense,
(B)(i) For purposes of clause (i) of subparagraph (A), an individual shall not be
considered confined in an institution comprising a jail, prison, or other penal institution
or correctional facility during any month throughout which such individual is residing
outside such institution at no expense (other than the cost of monitoring) to such
institution or the penal system or to any agency to which the penal system has transferred
jurisdiction over the individual.
The purpose of the prisoner nonpayment provision is to conserve scarce Social Security
resources where a prisoner’s basic needs are being met by the prison at public expense.
See, e.g., Davel v. Sullivan, 902 F.2d 559, 562 (7th Cir. 1990) (citing Sen. Rep. No. 987, 96th Cong., 2d Sess.
7-9 (1980)); Davis v. Bowen, 825 F.2d 799, 801 (4th Cir. 1987).
SSA has defined “confinement” broadly. The regulations  provide that confinement in a jail, prison, or other penal institution or correctional
facility continues as long as the individual is under a sentence of confinement and
has not been released due to parole or pardon. See 20 C.F.R. §§ 404.468(c), 404.1506(d); see also POMS DI 23501.001A.3, GN 02607.001B.2 (defining confinement as “when an individual resides in a correctional or mental
health institution”), GN 02607.160A.3 (confinement ends with end of sentence, pardon, or parole); SSR 83-21. Moreover,
an individual is considered confined even if he is temporarily or intermittently outside
of the facility (e.g., work release program, school attendance, hospitalization, or escape). See 20 C.F.R. §§ 404.468(c), 404.1506(d); see also 49 Fed. Reg. 48181, 48182; 48 Fed. Reg. 5711, 5714; POMS GN 02607.160A.3, GN 02607.200C, DI 23501.001A.3. The controlling factor is not whether the individual is physically confined in
the facility, but whether the individual, though perhaps outside the facility, is
still under a sentence of confinement. See SSR 83-21 (as long as there has been no action by court or other authority to end
sentence of confinement, person is still considered confined, even if, for example,
he escapes or is released to his home pending reassignment to hospital); POMS GN 02607.160A.3 (individual is confined if he is in custody of a U.S. correctional facility).
There are some exceptions to the general rule that confinement continues despite temporary
absences from the prison. First, an individual is not considered confined if he resides
outside a penal institution throughout a month at no expense (other than the cost
of monitoring) to the institution or to the penal agency or to any agency to which
the institution has transferred jurisdiction over the individual.  See Section 202(x)(1)(B)(i) of the Act; see also POMS GN 02607.160B.2. Second, the POMS states that benefits should not be suspended for individuals
who are placed in home confinement, as they normally reside outside the penal institution
at no expense (other than the cost of monitoring) to the institution. See POMS GN 02607.200C. Third, benefits should not be suspended for individuals who participate in a pre-release
or community-based early release program (e.g., halfway house) if: 1) they reside
outside the penal institution at no expense (other than the cost of monitoring) to
the institution, and 2) they pay for their own basic living needs (they must not use
any public funds to help support their basic living needs). See id.
Similar to Title II benefits, SSA will suspend an individual’s Title XVI benefits
if such individual is an inmate  of a public institution (which includes a penal institution) throughout a month.
A criminal conviction or court order is not required. Section 1611(e)(1)(A) of the
[N]o person shall be an eligible individual or eligible spouse for purposes of this
subchapter with respect to any month if throughout such month he is an inmate of a
See also 20 C.F.R. §§ 416.211(a)(1), 416.1325(a); POMS SI 00520.009A (prison or jail is a public institution), SI 02310.070C.1.
The regulations define “resident of a public institution” as a “person who can receive
substantially all of his or her food and shelter while living in a public institution.”
20 C.F.R. § 416.201; see also POMS SI 00520.001B.5; SI 02310.070A.2. “Throughout a month” is defined as residing in an institution as of the beginning
of a month and staying the entire month. See 20 C.F.R. § 416.211(a)(2); see also POMS SI 00520.001B.6, SI 02310.070A.3. The regulations also state that an individual remains a resident of a public institution
if he is “temporarily absent for a period of not more than 14 consecutive days.”  20 C.F.R. § 416.211(a)(2). The POMS further states that ineligibility due to residence
in a public institution continues during periods of authorized absence from a penal
institution (e.g., seasonal farm work, boot camp, work release program, stay in a
hospital or nursing home). See POMS SI 00520.009D.1, SI 02310.070C.1.a.
The 14-day temporary absence rule promulgated in the regulations could be read as
potentially inconsistent with the regulation defining a resident of a public institution
as one who “can receive” substantially all of his food and shelter at the institution,
since prisons generally do not provide food and shelter to a prisoner during a furlough.
However, a prisoner who has been granted a furlough has the option to remain in the
prison, where food and shelter would be provided to him. A prisoner’s decision to
accept a furlough does not change the fact that he could receive food and shelter at the prison, regardless of whether he actually does so.
See POMS SI 00520.001B.5 (it is immaterial whether the resident actually receives food or shelter at the
institution, as long as he could), SI 02310.070A.2 (same). From this perspective, the 14-day temporary absence rule in 20 C.F.R. §
416.211(a)(2) can be read consistently with the definition of a resident of a public
institution in § 416.201. See Florez v. Callahan, 156 F.3d 438, 446 (2d Cir. 1998) (holding that child was resident of a public institution
(hospital) under § 416.201 even though he spent weekends with his stepfather, who
provided his food and shelter on the weekends).
Thus, SSA has defined “resident of a public institution” broadly. Indeed, for absences
from prison of up to 14 consecutive days, the regulations are clear that an individual
will still be considered a “resident” for purposes of meeting the “throughout a month”
requirement. The agency has not yet addressed in the final regulations the effect
of absences greater than 14 consecutive days on the suspension of benefits to prisoners,
although it has done so in the POMS.  Inasmuch as your inquiry did not concern any prisoner furloughs exceeding 14 consecutive
days, this opinion does not address the effect of absences greater than 14 consecutive
days. We recommend that the agency consider addressing the inconsistency between the
14-day temporary absence rule in the regulations and the POMS provision which enlarges
this rule for prisoners.
As with Title II, the SSI rules for suspending benefits to prisoners do not apply
in certain instances. Specifically, the rules do not apply if the institution is private,
not public. For example, the POMS states that benefits should not be suspended when
an incarcerated individual is placed in home confinement. When the individual is confined
in a private home and the prison or penal authorities do not provide his food and
shelter, the agency does not consider the individual to meet the definition of “resident
of a public institution” in 20 C.F.R. § 416.201. See POMS SI 00520.009B.2 (a private home is not an institution), C.5, SI 02310.070C.2. The POMS also states that benefits should not be suspended if the individual is
placed in a privately-owned halfway house that is not acting as an agent of the penal
authorities. However, if the privately-owned halfway house is acting as an agent of the penal authorities (as is often the case), the individual
is not eligible for SSI. See POMS SI 00520.001C.2 (policy on public vs. private institutions), SI 00520.009B.3, C.3, F (example 2).
III. How Furloughs Affect the Suspension of Benefits to Prisoners in Region V States
Although it comes in many forms, in general a furlough is defined as “[a] brief release
from prison.” Black’s Law Dictionary (9th ed. 2009). While not all use the term “furlough,”
all six states in Region V statutorily authorize a temporary leave of absence from
a correctional facility for a designated period of time and purpose. See, e.g., Ind. Code § 11-10-9-2; Mich. Comp. Laws § 791.265a; 730 Ill. Comp. Stat. 5/3-1-2(j),
5/3-11-1; Ohio Rev. Code § 2967.27; Minn. Stat. §§ 244.07, 244.195; Wis. Stat. § 303.068.
Based on our review of the law, we conclude that, in most cases, a prisoner is considered
“confined” (Title II) or “a resident of a public institution” (Title XVI) even if
he is granted and/or released on a furlough, for purposes of suspension of benefits
to prisoners. The Act, regulations, and POMS do not explicitly address furloughs.
However, as discussed above, SSA has defined “confinement” and “resident of a public
institution” broadly, stating that “confinement” and “residence” continue even during
periods of absence from the facility. The regulations and POMS mention work release,
halfway houses, hospitalization, and school attendance as examples of absences that
do not affect “confinement” and “residence.”
Like these examples, we believe that a furlough generally fits within the broad definition
of “confinement” for Title II, because an individual who is released on furlough is
still under a sentence of confinement, remains in the constructive custody of the
correctional facility, and is not released due to parole, pardon, or the end of his
sentence. Likewise, we believe that a furlough generally fits within the broad definition
of “resident of a public institution” for Title XVI. At a minimum, the agency permits
an individual to be physically absent from a prison for up to 14 consecutive days,
and still remain a resident of a public institution. Also, a furlough is an authorized
absence, and an individual remains ineligible based on residence in a public institution
during periods of authorized absences from a penal institution. We believe that our
view on prisoner furloughs is consistent with the Act, regulations, and POMS, as well
as Congressional intent. 
In certain instances, however, there are exceptions that may apply, as outlined below.
Prisoner furloughs of certain durations:
Title II: The individual is not considered “confined” if the furlough lasts throughout
a month (i.e., the entire period from the first day of a month through the last day
of the month) and there is no expense (other than the cost of monitoring) to the institution
or penal agency or any agency to which the institution has transferred jurisdiction
over the individual.
Title XVI: The regulations do not address the effect of absences beyond 14 consecutive
days, but the POMS explains that a prisoner may be absent for more than 14 consecutive
days and still be considered a resident of a public institution. We recommend that
the agency address this inconsistency.
Title II: Benefits should not be suspended for individuals who are placed in home
confinement, as they normally reside outside the penal institution at no expense (other
than the cost of monitoring) to the institution.
Title XVI: Benefits should not be suspended when an individual is sentenced to home
confinement. The individual does not meet the definition of a “resident of a public
institution” when he is confined in a private home and the prison or penal authorities
do not provide his food and shelter.
Pre-release or community-based early release program (e.g., halfway house):
Title II: Benefits should not be suspended for individuals who participate in such
programs if: 1) they reside outside the penal institution at no expense (other than
the cost of monitoring) to the institution, and 2) they pay for their own basic living
needs (they must not use any public funds to help support their basic living needs).
Title XVI: Benefits should not be suspended if the individual is placed in a privately-owned
halfway house that is not acting as an agent of the penal authorities.