TN 30 (12-16)

PR 06805.021 Louisiana

A. PR 17-011 Whether Three Louisiana Inmate/Resident Mental Health Facilities Should Be Classified as Not Guilty by Reason of Insanity (NGRI) or Sexually Dangerous Person (SDP) Facilities

Date: October 31, 2016

1. Syllabus

This opinion provides detailed suspension and reinstatement information concerning a Title II beneficiary’s confinement or commitment status as a sexually dangerous person (SDP) and a not-guilty by reason of insanity (NGRI) person based on Louisiana law. Louisiana does not have laws expressly providing for court-ordered confinement of an SDP in any SDP type facilities. Louisiana law provides for probation and monitoring of SDPs upon their release from prison, Louisiana law does not provide for civil commitment of an SDP after the state releases the SDP from incarceration for a sex offense conviction. For NGRI person determinations in Louisiana, a court must issue an order to commit the defendant to a mental institution or to a court-approved private mental institution for custody, care, and treatment if the defendant commits a capital crime. In a non-capital case, however, the court holds a hearing to determine whether commitment is necessary, or whether it candischarge the NGRI defendant on probation. Under Louisiana law, only the committing court can discharge or release an NGRI defendant from confinement. This opinion also provides guidance on the requirements and documents necessary for reinstating Title II benefits for an SDP or NGRI.

2. Opinion

QUESTIONS PRESENTED

For purposes of the NGRI and SDP nonpayment provisions of Title II of the Social Security Act (Act), you ask whether the Social Security Administration (SSA or the agency) should classify three Louisiana inmate/resident mental health facilities as NGRI or SDP facilities (Louisiana inmate/resident mental health facilities).[1] You also asked us to identify the type of documentation the agency needs to determine whether the Title II nonpayment provision still applies to transferred inmates or whether their benefits should be reinstated.

SUMMARY RESPONSE

SDP Nonpayment Provision

Louisiana does not provide for SDP confinement. Therefore, the three Louisiana inmate/resident mental health facilities are not SDP facilities for purposes of the SDP nonpayment provision of Title II of the Act. See 42 U.S.C. § 402(x)(1)(A)(i), (iii).

NGRI Nonpayment Provision following Commitment of an NGRI Defendant

Our research did not show that the Act, agency regulations, or Louisiana law authorizes or identifies any Louisiana inmate/resident mental facility as an NGRI facility. Rather, our research showed that Louisiana courts can commit an NGRI defendant to a Louisiana inmate/resident mental facility, but the Act, agency regulations, or Louisiana law does not designate the Louisiana inmate mental facility as an NGRI facility.

For the Act’s NGRI nonpayment provision to apply, there must be: (1) a court verdict or finding of NGRI, and (2) a court order of confinement (for more than 30 days) in a U.S. correctional or mental health facility at public expense based on the NGRI verdict. See 42 U.S.C. § 402(x)(1)(A)(ii)(I), (II), (IV) (NGRI nonpayment provisions); Program Operations Manual System (POMS) GN 02607.310. Under Louisiana Law, following a verdict of NGRI, a court can commit an NGRI defendant to a state mental institution or to a court-approved private mental institution. See La. Code Crim. Proc. Ann. arts 650, 651, 654. Louisiana confines NGRI defendants at public expense. See La. Code. Crim. Proc. Ann. art. 660. Therefore, SSA must suspend Title II benefits for an NGRI defendant ordered by a Louisiana court to commitment, or confinement, in a mental institution. In general, in terms of the documentation to support nonpayment of benefits to an NGRI defendant, there should be a court order with a verdict of NGRI and a court order committing the NGRI defendant to a particular state mental health institution or a court-approved private mental health institution. See La. Code Crim. Proc. Ann. arts. 650, 651, 654. Therefore, the court commitment order would identify the institution of the NGRI defendant’s confinement.

Reinstatement of Title II Benefits Following Discharge or Probation/Conditional Release of a Committed NGRI Defendant

You asked about the transfer of NGRI defendants from a state mental health institution to three Louisiana inmate/resident mental health facilities. Thus, we believe that you are interested in knowing whether the NGRI defendant’s confinement continues in situations where an NGRI defendant is transferred from a state mental health institution to a Louisiana inmate/resident mental health facility. As above, we are not able to advise whether every transfer from a state mental health institution to one of three Louisiana inmate/resident mental health facilities is an official release such that confinement ends, as each transfer or release of an NGRI defendant must be considered on a case-by-case basis. A person confined to a mental institution due to a finding of NGRI continues to be confined within the meaning of the Act until the mental institution releases him from its care and supervision, and the institution ceases to meet his basic living needs. See 42 U.S.C. § 402(x)(1)(B)(ii). The POMS notes that confinement ends and benefits should be reinstated with conditional release (official release from the institution, which no longer provides for the beneficiary’s basic living needs, but the beneficiary continues to receive supervision or treatment); or unconditional release from an institution. POMS GN 02607.310(B)(2)(b), GN 02607.850. Thus, SSA must reinstate benefits when the NGRI defendant is both (1) no longer under the institution’s care and supervision (even if under a conditional release), and (2) the institution no longer provides the NGRI defendant with their basic living needs. POMS GN 02607.850(A).

Under Louisiana law, following initial commitment in a mental health institution, the committing court may later enter an order discharging (conditionally or unconditionally) the NGRI defendant, or the committing court may enter an order placing the NGRI defendant on probation (also called conditional release under Louisiana law). See La. Code Crim. Proc. Ann. art. 657. If the court orders that the NGRI defendant be placed on probation (conditional release), the clerk of court must provide the defendant with a certificate setting forth the period and conditions of his probation. See La. Code Crim. Proc. Ann. art. 658. In general, a Louisiana court’s order of discharge or order of probation (conditional release) of a committed NGRI defendant in accordance with Louisiana law may constitute an official release from the mental health institution such that SSA should reinstate benefits. However, SSA should carefully examine the specific information pertaining to NGRI defendants on a case-by-case basis to determine whether there has in fact been an official release from the court-ordered confinement in an institution. Thus, SSA must determine: (1) whether the NGRI defendant remains under the care and supervision of the mental health institution, and (2) whether the institution continues to provide the NGRI defendant’s basic living needs, which means food, clothing and shelter. See POMS GN 02607.850(A). If the answer to these two questions is affirmative, SSA should not reinstate benefits.

In terms of what documents SSA should look for in making the determination as to whether to reinstate benefits, the NGRI defendant is responsible for providing his official release documents to SSA for reinstatement of benefits, and the POMS instructs that SSA obtain very specific information. See POMS GN 02607.850(B). SSA should review the NGRI defendant’s official release documents to ensure that the individual has been officially released from the institution, either unconditionally or conditionally, and has not simply been transferred from one institution to another. See id. Further, SSA should verify that the institution is no longer providing the NGRI defendant with his basic living needs (food, clothing and shelter). See id. The official release documents should include the necessary identifying information about the NGRI defendant; the name of the institution where the NGRI defendant had been confined; the date and time of the release; and the signature of an official from the institution authorizing the release. See id. For a conditional release, or probation, the documents must contain the NGRI defendant’s conditions for release, such as the amount of supervision the inmate will receive from the institution once released; the treatment the NGRI defendant may be required to receive when released; and where the NGRI defendant will reside when released. See id. Because under Louisiana law only a court can discharge or conditionally release (place on probation) a committed NGRI defendant from confinement, we recommend that SSA obtain the court order of discharge, or the court order of probation (conditional release) and the court clerk’s certificate of the terms of probation (conditional release). We are unable to know whether all Louisiana court orders of discharge or probation (conditional release) will contain all of the necessary information that SSA needs to determine whether to reinstate benefits. Therefore, in addition to SSA obtaining a copy of the court order, POMS GN 02607.850(B) provides that SSA may still need to seek additional information from the NGRI defendant or mental health institution to determine whether the individual is no longer under the care and supervision of the institution, and whether the institution no longer provides basic living needs to the NGRI defendant.

BACKGROUND

The field office in Baton Rouge, Louisiana (FO), requested advice as to whether three Louisiana inmate/resident mental health facilities are NGRI or SDP facilities. FO personnel noted that Eastern Louisiana Mental Health System (ELMHS), a state psychiatric hospital operated by the Louisiana Department of Health, Office of Behavioral Health,[2] transfers or releases NGRI defendants,[3] whom are released but still under the jurisdiction of the criminal court, to one of the following receiving mental health facilities: Harmony Center in Baton Rouge, Louisiana;[4] Grace Outreach Center in New Orleans, Louisiana;[5] or Villa Feliciana in Jackson, Louisiana[6] (hereinafter collectively referred to as “Louisiana inmate/resident mental health facilities”). It is our understanding that SSA is not paying the defendants any Social Security benefits while they are at ELMHS, and that the nonpayment of benefits while at ELMHS is not at issue in this legal opinion request; rather, the questions arise when these NGRI defendants are transferred or released from ELMHS to these other Louisiana inmate/resident mental health facilities. When ELMHS transfers the defendant to one of those three Louisiana inmate/resident mental health facilities, a representative of the Louisiana inmate/resident mental health facility files an application requesting SSA to appoint the Louisiana inmate/resident mental health facility as representative payee of the transferred defendant’s Social Security benefits. The Louisiana inmate/resident mental health facility also has the defendant file an initial claim for benefits or request benefit reinstatement. In support of their request for reinstatement of benefits or initial claim for benefits once transferred to one of the three Louisiana inmate/resident mental health facilities, the defendant often presents to SSA forms that ELMHS prepares when transferring or releasing him to the Louisiana inmate/resident mental health facility, but the forms are usually vague and not reliable.

To apply proper NGRI or SDP policies, the FO requested advice on whether the Louisiana inmate/resident mental health facilities are facilities where the courts confine NGRI or SDP defendants and to identify the type of documentation the Louisiana inmate/resident mental health facilities or the NGRI defendant need to present to SSA when requesting reinstatement of benefits or filing a new claim for benefits, when transferred from ELMHS to one of the Louisiana inmate/resident mental health facilities.

DETAILED ANALYSIS

I. Federal Law: Overview of Limitation on Payments to Prisoners and Confined Persons

Under section 202(x)(1)(A) of the Act, SSA does not pay Title II benefits to a person who is confined:

  • in a jail, prison, or other penal or correctional facility for more than 30 continuous days due to a conviction for committing a criminal offense (the prisoner nonpayment provision);

  • by court order in an institution at the public’s expense for more than 30 continuous days in connection with a verdict or finding that they are:

    • not guilty by reason of insanity (the NGRI nonpayment provision);

    • incompetent to stand trial (the IST nonpayment provision); or

    • sexually dangerous persons (the SDP nonpayment provision).

See 42 U.S.C. § 402(x)(1)(A); POMS GN 02607.001(A). Consistent with the specific issues raised in the legal opinion request, this legal opinion focuses only upon the SDP and NGRI provisions as it relates to inmates transferred from ELMHS to the three Louisiana inmate/resident mental health facilities.[7]

II. Federal Law: Title II Benefits and the SDP Nonpayment Provision

SSA does not pay Title II benefits to a person if, upon completion of the confinement for a conviction of a criminal offense involving sexual activity, pursuant to a court order, the individual was immediately transferred and confined in an institution at public expense because the individual was determined to be a SDP, a sexual predator, or a similar finding. See 42 U.S.C. § 402(x)(1)(A)(i), (iii). The POMS explains that the Act “prohibits payment to a beneficiary who a court finds is [an SDP] or a sexual predator based on State law.” POMS GN 002607.350(A). The POMS defines SDP as “a person with a mental abnormality or personality disorder who is likely to engage in sexual offenses if released from confinement.” See id. at GN 02607.001(B)(9). State laws generally have the following requirements for considering a person to be an SDP: a conviction for a sexually violent crime, or conduct that would be a crime; a mental abnormality or personality disorder (pedophilia, rape, etc.); and the offender is likely to reoffend unless confined in a secure facility (mental institution or special commitment center). See id. at GN 02607.350(A).

The POMS instructs SSA to suspend Title II benefit payments to an individual when a court finds the individual to be an SDP based on state law and the court issues an order confining the individual to an institution for more than 30 continuous days at public expense immediately following the individual’s completion of his criminal prison sentence. See POMS GN 02607.350(A)-(B). SSA will enforce the Act’s SDP nonpayment provision only in those states that have laws expressly providing for court ordered confinement of SDPs. See id. Thus, we next consider Louisiana law to determine (1) how state law defines an SDP and (2) whether Louisiana law expressly provides for court ordered confinement of SDPs.

A. Louisiana Law Regarding SDP

In 2006, Louisiana enacted new laws targeting sex offenders released from prison. See La. Rev. Stat. Ann. §§ 15:560-560.6; State v. Golston, 67 So.3d 452, 454 (La. 2011) (holding the new sex offender laws of La. Rev. Stat. Ann. § 15:560 et seq. to be constitutional). Louisiana refers to an SDP as a “child sexual predator” or “sexually violent predator” (hereinafter collectively referred to as “SDP”) and defines it as an offender who the court has convicted of a sex offense and who has a mental abnormality or anti-social personality disorder that makes him likely to engage in predatory sexually violent offenses. La. Rev. Stat. Ann. §§ 15:541(6), (27), 15:560.1(1), (5). If the court and a Sex Offender Assessment Panel finds an offender is an SDP, the court must order the division of probation and parole, Department of Public Safety and Corrections, to supervise the offender upon his release from incarceration for the duration of his natural life. Id. at § 15:560.3(A).

Upon release from incarceration and for the duration of his natural life, the SDP must, among other things, do the following: register as a sex offender; provide community notification regarding his sex offender status; submit to electronic monitoring; submit to continued supervision, either in person or through remote monitoring, of certain internet-related activities; submit a resident plan for approval; and report to the probation and parole officer when directed to do so. Id. at § 15:560.3(A)(1)-(14). Thus, under Louisiana law, SDPs are placed on indefinite probation and electronic monitoring, but they are not civilly committed to other facilities after being released from prison.

B. Whether the Three Louisiana Mental Health Facilities Are SDP Facilities

As explained above, although Louisiana law provides for probation and monitoring of SDPs upon their release from prison, Louisiana law does not provide for civil commitment of an SDP after the SDP is released from incarceration for a sex offense conviction. See La. Stat. Ann. § 15:560.3(A)(1)-(14) (effects of determination of status as an SDP). As a result, Louisiana does not have laws expressly providing for court ordered confinement of an SDP in any SDP facilities. See POMS PR 06805.048, C. PR 07-191 Request for Opinion on Regional Sexual Predator Laws (Aug. 8, 2007) (finding that Louisiana laws do not provide for the confinement in an institution of a sexual predator immediately after he or she completes his or her confinement in a jail, prison, or other penal institution or correctional facility). Therefore, the three Louisiana inmate/resident mental health facilities at issue in this legal opinion request are not SDP facilities for purposes of the nonpayment of Title II benefits under the Act. See 42 U.S.C. § 402(x)(1)(A)(iii); POMS GN 02607.350(A) (“We enforce the SDP nonpayment provision only in those states that have laws expressly providing for court ordered confinement of SDPs.”).

III. Federal Law: Title II Benefits and the NGRI Nonpayment Provision

SSA does not pay Title II benefits to a person who is, for more than a 30-day period, confined by court order in an institution at public expense in connection with:

  • a verdict or finding that the individual is guilty but insane, with respect to a criminal offense;

  • a verdict or finding that the individual is not guilty of such an offense by reason of insanity; or

  • a similar verdict or finding with respect to such an offense based on similar factors, such as a mental disease, a mental defect, or mental incompetence.

See 42 U.S.C. § 402(x)(1)(A)(ii)(I), (II), (IV) (NGRI provisions). The POMS instructs that a court declares a defendant NGRI when it: (1) finds a defendant guilty but insane with respect to a criminal offense; (2) finds a defendant not guilty of a criminal offense by reason of insanity; or (3) issues a similar verdict or finding with respect to a criminal offense based on similar factors, such as mental disease, mental defect, or mental incompetence.” POMS GN 02607.310.[8] SSA suspends Title II benefit payments to an individual when: (1) a court issues a verdict of NGRI; (2) an institution takes custody of the beneficiary because of the NGRI verdict; and (3) the beneficiary remains confined in the institution for more than 30 continuous days based on the NGRI verdict. See 42 U.S.C. § 402(x)(1)(A)(ii)(I), (II), (IV); POMS GN 02607.310(B)(1)(b).

It is our understanding that the issues of this legal opinion primarily concern when an NGRI defendant’s confinement ends such that benefits can be reinstated. Confinement means an individual is in the custody of a United States correctional or mental health institution, or facility. POMS GN 02607.001(B)(1). A person confined in an institution due to a finding of NGRI continues to be confined within the meaning of the Act until the mental institution releases him from its care and supervision, and the institution ceases to meet his basic living needs.[9] See 42 U.S.C. § 402(x)(1)(B)(ii). Thus, SSA must reinstate benefits when the NGRI defendant is both (1) no longer under the institution’s care and supervision, and (2) the institution no longer provides the NGRI defendant with their basic living needs. POMS GN 02607.850(A). As to the basic living needs, the POMS explains that this “means the institution provides the inmate with food, clothing, and shelter.” Id. As to the care and supervision criteria, the POMS explains that “[c]are and supervision means that the individual requires continual supervision and monitoring by the institution.” The POMS further explains that confinement ends and benefits should be reinstated with unconditional release from an institution (set free completely), as well as with conditional release from confinement in an institution, which is considered an official release from the institution when the institution no longer provides for the beneficiary’s basic living needs, but the beneficiary continues to receive some degree of supervision or treatment as a condition of the release. POMS GN 02607.310(B)(2)(b), GN 02607.850(A)(1). The POMS notes that transferring the defendant from one facility to another does not qualify as an official release from the institution. POMS GN 02607.850(A)(1)(c). Finally, the POMS sets forth specific procedures for processing reinstatement of benefits and explains in detail the type of official release documents that the agency should obtain, which we address in the final section of this opinion. See POMS GN 02607.850(B).

In summary, for the Act’s NGRI nonpayment provision to apply, there must be: (1) a court verdict or finding of NGRI, and (2) a court order of confinement (for more than 30 days) in a U.S. correctional or mental health facility at public expense based on the NGRI verdict. See 42 U.S.C. § 402(x)(1)(A)(ii)(I), (II), (IV); POMS GN 02607.310. When the institution releases the defendant from confinement, meaning the defendant is no longer under the care and supervision of the institution where he had been confined, and the institution no longer provides him with his basic living needs, SSA should reinstate the NGRI defendant’s benefits. POMS GN 02607.850. We next consider Louisiana law relevant to the NGRI provisions.

A. Louisiana Law Regarding NGRI Verdict and Initial Commitment of an NGRI Defendant to a Mental Institution

A defendant is presumed under the law to be sane and responsible for his or her conduct. La. Rev. Stat. Ann. § 15:432. Under Louisiana law, a defendant may raise a defense of insanity at the time of the offense and to do so, must enter a combined plea of not guilty and NGRI. La. Code Crim. Proc. Ann. art. 650; see also La. Code Crim. Proc. Ann. art. 651 (if a defendant enters a plea of only “not guilty,” evidence of insanity or a mental defect at the time of the offense is not admissible; the defendant must enter a plea of not guilty and NGRI to present the defense of insanity). The defendant has the burden of proving his insanity by a preponderance of the evidence. La. Code Crim. Proc. Ann. art. 652. A court verdict of NGRI is an acquittal on the ground of insanity. See id. at art. 654.

When a court finds a defendant NGRI in a capital case,[10] the court must commit the defendant to a proper state mental institution or to a court-approved private mental institution for custody, care, and treatment. La. Code Crim. Proc. Ann. art. 654 (legal effect of acquittal on ground of insanity and commitment); see also State v. Lott, 325 So.2d 576, 578-579 (La. 1976) (“In a capital case, the judge has no discretion; if the defendant is found not guilty by reason of insanity, he must be committed to a mental institution.”).

In a non-capital case, however, the court holds a hearing to determine whether commitment is necessary, or whether the NGRI defendant can be discharged or released on probation. See La. Code Crim. Proc. Ann. art. 654. When the court finds a defendant NGRI, the court must remand the defendant to the parish jail or to a court-approved private mental institution and must promptly hold a contradictory hearing to determine whether the court can discharge the defendant or release the defendant on probation, without danger to others or himself, or whether to commit the defendant. Id.; see also La. Rev. Stat. Ann. § 28:59(A) (“Any person acquitted of a crime or misdemeanor by reason of insanity or mental defect may be committed to the proper institution in accordance with Code of Criminal Procedure Arts. 654 et seq.”); Jackson v. Foti, 670 F.2d 516, 517, 519-520 (5th Cir. 1982) (noting that “[t]he controlling authority for the commitment of insanity acquittees is article 654 of the Louisiana Code of Criminal Procedure, and holding that “[w]e conclude that the due process clause entitles insanity acquittees to a hearing before commitment and that the equal protection clause requires a state to afford insanity acquittees substantially the same protections, subject to certain qualifications, as are granted to persons under civil commitment statutes.”). After the hearing, if the court determines that it can discharge the defendant or release the defendant on probation, without danger to others or to himself, the court must order his discharge or his release on probation, subject to specified conditions for a fixed or an indeterminate period. La. Code Crim. Proc. Ann. art. 654. If instead, the court determines it cannot release the defendant without danger to others or to himself, the court must order the defendant committed to a proper state mental institution or to a court-approved private mental institution for custody, care, and treatment. Id. A mental institution shall admit a defendant found NGRI pursuant to article 654 only if the court provides the following information: the defendant’s commitment order specifying NGRI; a copy of the defendant’s criminal history record; a police report concerning the charged offense; victim and witness statements, if any; and the name, address, and telephone number of the district attorney who prosecuted the defendant. Id. at art. 654.1. The State bears the institutional costs of criminal commitment for the custody, care, and treatment of the NGRI defendant. Id. at art. 660.

Whether the court commits or releases the person on probation, it must at all times issue an order that includes written findings of fact and conclusions of law. Id. at arts. 654, 657. Thus, when an NGRI defendant is committed to a mental institution following a verdict of NGRI, there is a court commitment order reflecting this commitment and naming the specific institution where the person is to be confined, and the court provides this commitment order to the mental institution.

If the court orders the NGRI defendant’s commitment to a state mental institution or to a court-approved private mental institution, state law sets forth specific procedures for subsequent application for discharge or release on probation of a NGRI defendant from the mental institution, or for continued commitment. See id. at arts. 655-658. It is our understanding that the legal opinion request is concerned primarily with subsequent releases or transfers of NGRI defendants following the initial commitment to a mental health institution (here, the ELMHS). Thus, we examine these procedures next.

B. Louisiana Law Regarding the Discharge or Release on Probation (Conditional Release) of a Committed NGRI Defendant

The committed NGRI defendant can himself apply for discharge or release on probation, and the mental institution may on its own recommend discharge (conditionally or unconditionally) or release on probation (also called conditional release). La. Code Crim. Proc. Ann. art. 655(A), (B). Under Louisiana law, only the committing court can discharge or release on probation an NGRI defendant from confinement in the mental health institution. The committing court makes the final determination on whether discharge or probation is appropriate based on reports and recommendations from the mental institution and a review panel. See id. at arts. 655, 656, 657. The court considers the reports filed pursuant to articles 655 and 656 and may either continue the commitment or hold a contradictory hearing to determine whether the committed person is no longer mentally ill and can be discharged, or can be released on probation, without a danger to others or to himself. Id. at art. 657. At the hearing, it is the State’s burden to seek the continuance of the confinement by proving by clear and convincing evidence that the committed person is currently both mentally ill and dangerous. Id. After the hearing, the court enters a judgment and order with written findings of fact and conclusions of law. Id. The court may order the committed person (1) discharged, (2) released on probation subject to specified conditions for a fixed or indeterminate period (also called conditional release),[11] or (3) recommitted to the state mental institution. Id. Thus, there should be a court order reflecting the discharge, release on probation (conditional release), or recommitment of an NGRI defendant following his initial confinement.

When the committed person is released on probation (conditional release), the clerk of court shall provide him with a certificate setting forth the period and conditions of his probation. Id. at art. 658(A). Thus, SSA should obtain a written certificate setting for the terms of the conditional release/probation. The probationer remains under the division of probation and parole’s supervision, and the Department of Health and Hospitals (department) shall remain responsible for the community treatment and monitoring of persons placed on outpatient status. Id. at art. 658(B). The department may provide for the outpatient services directly or through contracts with private providers or local jurisdictions. Id. The department must designate a conditional release program coordinator to monitor the aftercare, progress, and compliance with the court order. Id. If a person violates the conditions of the probated release or was about to violate the conditions of probation, the court is notified, and the court may revoke probation and recommit to a state institution, reprimand and warn the probationer, order that supervision be intensified, or modify or add conditions to the probation. Id. at art. 658(C).

C. Whether the NGRI Defendants Transferred/Released from ELMHS to the Three Louisiana Inmate/Resident Mental Health Facilities Remain in Confinement at the Public’s Expense

It is our understanding that the primary focus of this legal opinion request focuses on the transfer or release of NGRI defendants from ELMHS to the three Louisiana inmate/resident mental health facilities. We are unable to answer your broad question of whether these three Louisiana inmate/resident mental health facilities are NGRI facilities.[12] In order to know whether an NGRI defendant’s confinement continues when transferred or released from ELMHS to one of these three Louisiana inmate/resident mental health facilities, SSA must determine whether this is an official release from confinement or whether this is merely a transfer from one facility to another as part of the court-ordered confinement. See POMS GN 02607.850(A). The issue of whether a particular NGRI defendant in Louisiana remains under confinement or has been officially released must be addressed on a case-by-case basis by examining the specifics of the NGRI defendant’s release. As detailed above, under Louisiana law, only a court can officially release a committed NGRI defendant from confinement, and there are two ways in which a court can officially release a committed NGRI defendant from confinement: discharge or conditional release (probation).

As also explained, a Louisiana court can enter an order discharging a committed NGRI defendant from confinement, and the discharge can be conditional or unconditional. See La. Code Crim. Proc. Ann. arts. 655, 657. We believe that a court’s discharge order constitutes an official release for purposes of reinstating benefits, but that SSA should carefully examine the documents with regard to the discharge to make sure that the institution no longer provides care and supervision and basic living needs to the NGRI defendant. See POMS GN 02607.850(A).

Also, a Louisiana court can enter an order placing an NGRI defendant on conditional release (probation). See La. Code Crim. Proc. Ann. arts. 655, 657, 658. We believe that this may constitute an official release for purposes of reinstating benefits, but that SSA should carefully examine the documents with regard to the terms of probation and make sure that the release in question is a conditional release (placement on probation) under Louisiana law and not merely a transfer to another facility as part of the court-ordered commitment of the NGRI defendant. Additionally, SSA must make sure that with the conditional release (placement on probation), the institution no longer provides the basic living needs of food, clothing, and shelter. See POMS GN 02607.850(A).

D. Documenting the Official Release of the Committed NGRI Defendant from Confinement in a Mental Health Institution

You provided some document samples NGRI defendants or Louisiana inmate/resident mental health facility representatives give to SSA in support of reinstatement of benefits to an NGRI defendant or to support a new claim by an NGRI defendant. You believe such documents are too vague and result in inconsistent determinations by the agency, and we agree. The sample documents provided are too vague to determine whether the individual is an NGRI defendant committed by court to a Louisiana inmate/resident mental health institution; whether the committed NGRI defendant is no longer under the institution’s care and supervision; and whether the institution no longer provides the basic living needs. See POMS GN 02607.850(A). The POMS instructs that SSA needs the “official release documents” and that the NGRI defendant is responsible for providing his release documents to SSA for reinstatement of benefits. See POMS GN 02607.850(B). The POMS requires that SSA obtain very specific information from the NGRI defendant or the mental health institution to be certain that the institution has officially released the NGRI defendant. See POMS GN 02607.850(B). The POMS explain that the official release documents must contain specific information showing: (1) that the NGRI defendant was committed to the institution following a verdict of NGRI and that a committing court has now “officially released” the NGRI defendant from confinement either by discharge or conditional release (probation) from the institution; (2) if placed on probation (or conditional release), the specific terms of the probation; and, (3) that the institution no longer provides the NGRI defendant with food, clothing, and shelter (meets his basic living needs) following this discharge or conditional release. See POMS GN 02607.850(B)(1)(a). Further, the POMS instructs that the documents must: (1) clearly identify the NGRI defendant so that SSA can confirm that it is the same person who was committed following an NGRI verdict; (2) clearly identify the institution where the NGRI defendant was confined and now discharged or conditionally released on probation; (3) the date and time of the discharge or the conditional release on probation; (4) the signature of an official from the institution authorizing the discharge or conditional release on probation; and, (5) if placed on conditional release, documents must identify the conditions for release, such as the amount of supervision the defendant will receive from the institution once released, the type of treatment required when released, and where the defendant will reside once released. See POMS GN 02607.850(B)(b). The sample documents you gave us with this legal opinion request do not provide all of this information.

As explained above, under Louisiana law, only a court can discharge or conditionally release a committed NGRI defendant from confinement to a Louisiana inmate/resident mental health institution. Therefore, the official release documents of a committed NGRI defendant would be the Louisiana committing court’s order of discharge or release on probation (conditional release). If released on probation, there will also be the Louisiana court clerk’s certificate setting forth the specific terms of the probation. The institution should have the controlling court documents in its possession in order to process the discharge or conditional release of the defendant from the court-ordered confinement. Therefore, we recommend that SSA request these official release documents. As stated in the prior section, we believe that these court documents should allow SSA to determine if the NGRI defendant has been officially released, such that the institution no longer provides the defendant’s care and supervision and basic living needs. See POMS GN 02607.850. However, we are unable to know whether all Louisiana court orders of discharge or probation (conditional release) will contain the necessary information that SSA needs to determine whether to reinstate benefits, Therefore, in addition to the court orders and in accordance with POMS GN 02607.850(B), SSA may still need to seek additional information from the NGRI defendant or mental health institution to determine whether the individual is no longer under the care and supervision of the institution, and whether the institution no longer provides basic living needs to the NGRI defendant. If such court documents are not provided and SSA is unable to obtain the documents, other official release documents the NGRI defendant or mental institution provides must specify the information POMS GN 002607.850 requires for SSA to determine if the NGRI defendant has been officially released such that the institution no longer provides the defendant’s care and supervision and basic living needs. If the NGRI defendant or mental institution provide the information showing that the court officially released the defendant and that the mental institution no longer provides for the defendant’s care, supervision, and basic living needs, SSA must reinstate benefits.

CONCLUSION

Louisiana does not provide for SDP confinement. Therefore, the three Louisiana inmate/resident mental health facilities at issue in your legal opinion request are not SDP facilities for purposes of the SDP nonpayment provision of Title II of the Act. See 42 U.S.C. § 402(x)(1)(A)(i), (iii). As to the NGRI nonpayment provision of Title II of the Act, we are not able to advise in general terms whether these three Louisiana inmate/resident mental health facilities are facilities the court orders an NGRI defendant be confined or whether every transfer from ELMHS to these three Louisiana inmate/resident mental health facilities is an official release such that confinement ends, as each transfer or release of an NGRI defendant must be considered on a case-by-case basis. A person confined to a mental institution due to a finding of NGRI continues to be confined within the Act’s meaning until the mental institution releases him from its care and supervision, and the institution ceases to meet his basic living needs. See 42 U.S.C. § 402(x)(1)(B)(ii). The POMS notes that confinement ends and benefits should be reinstated with conditional release (official release from the institution, which no longer provides for the beneficiary’s basic living needs, but the beneficiary continues to receive supervision or treatment); or unconditional release from an institution. POMS GN 02607.310(B)(2)(b), GN 02607.850. As detailed above, under Louisiana law, only a court can officially release a committed NGRI defendant from confinement for purposes of reinstatement of benefits in one of two ways: discharge or conditional release (probation). We recommend that SSA obtain the court’s order of discharge or order of conditional release and the court clerk’s certificate of conditional release as the official release documents. Also, SSA may need to obtain any additional information that POMS GN 02607.850 requires before reinstating benefits.

Traci B. Davis

Acting Regional Chief Counsel

By: Ruben Montemayor

Assistant Regional Counsel

B. PR 07-191 Request for Opinion on Regional Sexual Predator Laws - REPLY

DATE: August 8, 2007

1. SYLLABUS

A question was presented as to whether any of the States in Region VI, (Arkansas, Louisiana, New Mexico, Oklahoma and Texas) now require confinement of a sexual offender upon completion of a prison term. Based on the Regional Counsel's investigation, the laws in the states in Region VI have not changed since their last opinion completed in March 2000. Those laws do not require the confinement of a sexual offender after he or she completes a prison term. Therefore, the Social Security Administration (Agency) may not suspend benefits after authorities release a sexual offender from prison within any state in Region VI.

2. OPINION

This is in response to your request for information concerning whether the laws in the states in Region VI have changed since we released our March 2000 legal opinion reviewing state laws regarding sexually dangerous persons/sexual predators. In that opinion, we concluded that the laws in the states in Region VI did not require confinement of a sexual offender upon completion of a prison term. The laws in the states in Region VI have not changed since our last opinion. Those laws do not require the confinement of a sexual offender after he or she completes a prison term. Therefore, the Social Security Administration (Agency) may not suspend benefits after authorities release a sexual offender from prison within any state in Region VI.

As stated in our March 2000 opinion, Congress created a new category of inmates who are subject to the Agency's prisoner suspension provisions. 42 U.S.C. § 402(x)(iii). The Social Security Act provides for the continued denial of Title II benefits to individuals who:

immediately upon completion of confinement [in a jail, prison, or other penal institution or correctional facility] pursuant to conviction of a criminal offense an element of which is sexual activity, is confined by court order in an institution at public expense pursuant to a finding that the individual is a sexually dangerous person or a sexual predator or a similar finding.

42 U. S. C. § 402(x)(iii).

We set forth below our related analysis of each Region VI state's law.

Arkansas:

Arkansas sexual predator laws have not changed substantively since March 2000. Arkansas law does not provide for the confinement of sex offenders who have completed their prison terms. See Ark. Code Ann. §§ 12-12-901 - 12-12-923. Accordingly, the Agency may not suspend benefits after authorities release a sexual offender from prison.

Louisiana:

Louisiana law has not changed significantly since our March 2000 legal opinion. In 2006, Louisiana enacted laws providing for electronic monitoring and the supervised release of certain sexual predators, but Louisiana laws do not provide for the confinement in an institution of a sexual predator immediately after he or she completes his or her confinement in a jail, prison, or other penal institution or correctional facility. See La. Rev. Stat. Ann. §§ 15:560.1, 15:560.3, 15:560.4, 15:561.2.

New Mexico:

New Mexico law has not changed since we last examined this issue in March 2000. New Mexico's law does not provide for the confinement of an incarcerated sexual predator following completion of his or her prison sentence. A bill currently pending in the New Mexico Senate Judiciary Committee provides for continued confinement in a treatment facility for sexually violent predators that authorities release from prison. See S.B. 452. The committee has postponed action on the bill indefinitely, and the same bill died in committee in 2003 and 2005.

Oklahoma:

Oklahoma law has not changed since our March 2000 legal opinion. The Oklahoma Sex Offenders Registration Act requires sexual offenders to register with the Department of Corrections, but the Act does not provide for the confinement of sexual offenders after they have completed their prison terms. See Okla. Stat. Ann. tit. 57, §§ 581-590.1. Thus, under Oklahoma law, the Agency may not suspend benefits after authorities release a sexual offender from prison.

Texas:

Texas law has not changed substantively since our March 2000 legal opinion. Texas law does not provide for confinement of sexual offenders after they have completed their prison terms. See Tex. Health and Safety Code § 841.081. Thus, under Texas law, the Agency may not suspend benefits after authorities have released a sexual offender from prison.

In summary, the laws in the states in Region VI have not changed since we released our March 2000 legal opinion reviewing state laws regarding sexually dangerous persons/sexual predators. We conclude that none of the laws in the states in Region VI requires the confinement of a sexual offender after he or she completes a prison term. As such, the Agency may not suspend benefits after authorities release a sexual offender from prison within any state in Region VI.

Tina M. W~ Regional Chief Counsel
Julia D~
Assistant Regional Counsel


Footnotes:

[1]

. An individual is not eligible for Title XVI benefits during any month he or she is an inmate or resident of a public institution, with certain exceptions. See 42 U.S.C. § 1382(e)(1)(a); 20 C.F.R. §§ 416.201, 416.211(a)(1), 416.1325(a). However, we do not address any of these separate issues relevant to Title XVI eligibility and suspension of benefits because these are outside the scope of the legal opinion request asking only about the SDP and NGRI suspension provisions of Title II.

[2]

. The Louisiana Department of Health, Office of Behavioral Health (OBH), which was created in 2009, is responsible for statewide services and support for those with mental health and additive disorders. See http://new.dhh.louisiana.gov/index.cfm/page/94 (last visited Oct. 25, 2016). The OBH “operates two state psychiatric facilities that provide mental health evaluation, treatment, and rehabilitation services for adults who have severe and persistent mental illness.” See http://new.dhh.louisiana.gov/index.cfm/page/97 (last visited Oct. 25, 2016). These two state psychiatric hospitals are the Central Louisiana State Hospital (CLSH) and the Eastern Louisiana Mental Health System (ELMHS). See id. The ELMHS is described as an integrated mental health care system and works with agencies across the State. See http://new.dhh.louisiana.gov/index.cfm/directory/detail/219 (last visited Oct. 25, 2016). ELMHS has two divisions: the East Division, which operates the ELMHS Acute Unit, and the Forensic Division, which provides a high level of security and provides services to adults who are remanded to the program through legal proceedings. See id. ELMHS had previously been comprised of state mental hospitals known as East Louisiana State Hospital, the Feliciana Forensic Facility, and the Greenwell Springs Hospital. See La. Att’y Gen. Op. No. 07-0312, 2008 410569, at *1 (La. A.G. Jan. 9, 2008); State v. Watson, 779 So.2d 46, 48 (La. Ct. App. 2001). Some of the Louisiana statutes continue to refer to ELMHS as the Feliciana Forensic Facility. See e.g., La. Rev. Stat. Ann. §§ 28:21(A), 28:25.1; La. Code Crim. Proc. Ann. arts. 648, 658(A)(4). For purposes of this legal opinion, we refer to the state mental health hospital at issue as ELMHS. It is our understanding that inmates/residents are being transferred or released from facilities within the ELMHS to these other Louisiana inmate/resident mental health facilities.

[3]

. For purposes of this legal opinion, we use the terms “NGRI defendant,” “defendant,” “person,” and “individual” interchangeably to refer to the NGRI inmate transferred or released from ELMHS to the Harmony Center, Grace Outreach, and Villa Feliciana.

[4]

. The website for the “Harmony Center Inc. – Harmony Transitional Services” in Baton Rouge, Louisiana states that the facility provides assisted living and substance rehabilitation services. See http://www.thecarecenters.com/show/Harmony-Center-Inc-Harmony-Transitional-Services-Baton-Rouge-LA (last visited Oct. 25, 2016).

[5]

. Grace Outreach Center in New Orleans, Louisiana offers services of supports groups, medication management, crisis counseling, marriage and family counseling, counseling, life skills, and therapy. See http://www.nola.gov/health/resources/(last visited Oct. 25, 2016).

[6]

. Villa Feliciana Medical Complex is located in Jackson, Louisiana and offers elderly care and medical care and rehabilitation services to patients diagnosed with chronic diseases, disabilities, and terminal illnesses. See http://www.dhh.louisiana.gov/index.cfm/directory/detail/535 (last visited Oct. 25, 2016).

[7]

. If you have questions related to the transfer/release of inmates to these three mental health facilities under the IST nonpayment provision, please submit a legal opinion request on that issue. See 42 U.S.C. § 402(x)(1)(A)(ii)(III); POMS GN 02607.330.

[8]

. The POMS defines NGRI as a plea by a criminal defendant who admits the criminal act, but claims that he or she was mentally disturbed at the time of the crime and lacked the mental capacity to have intended to commit the crime. POMS GN 02607.001(B)(5), GN 02607.310(A). The POMS further explains that a NGRI plea requires that a court conduct a trial on the issue of insanity alone. POMS GN 02607.310(A). Further, the POMS explains that before the trial, the court may confine a beneficiary for a psychological examination and that after the examination, the court makes a decision about the beneficiary’s sanity. Id. An insanity judgment results in a not guilty verdict. Id. If the beneficiary’s insanity condition continues, the beneficiary may be committed to a mental facility for the criminally insane or to a mental hospital. Id.

[9]

. “Social Security is intended to replace earnings and provide basic income for food, clothing, and shelter to workers who retire or become disabled. Individuals who have been committed to an institution pursuant to committing a crime are already relying on public funds to cover the costs of their basic living expenses.” H. Rep. No. 103-491, at 3 (1994), as reprinted in 1994 U.S.C.C.A.N. 3266, 3268.

[10]

. A capital case constitutes an offense “that may be punished by death.” La. Code Crim. Proc. Ann. art. 933.

[11]

. A court may place the NGRI defendant (also called the insanity acquittee) on conditional release (probation) if the defendant does not need inpatient treatment but needs outpatient treatment, supervision and monitoring; outpatient treatment, supervision, and monitoring are reasonably available; there is a significant reason to believe that the defendant would comply with the conditions specified for conditional release; and conditional release would not pose an undue risk of danger to others or to the defendant. See La. Code Crim. Proc. Ann. art. 657.1.

[12]

. As explained above, neither the Act, regulations, nor Louisiana law authorizes or identifies any Louisiana inmate/resident mental facility as an NGRI facility. Rather, our research showed that Louisiana courts can commit an NGRI defendant to a Louisiana inmate/resident mental facility, but the Act, agency regulations, or Louisiana law does not designate the Louisiana inmate mental facility as an NGRI facility.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1506805021
PR 06805.021 - Louisiana - 12/07/2016
Batch run: 12/07/2016
Rev:12/07/2016