TN 20 (07-14)
PR 06805.028 Missouri
A. PR 14-112 Request for Legal Opinion – Suspension of Benefits for Individual on Supervised Probation in a Residential Treatment Facility
DATE: August 13, 2013
This opinion provides guidance into a new confinement category that is known as “supervised probation.” Based on our Social Security regulations in section 20 C.F.R. § 404.468(a), supervised probation constitutes confinement in a correctional institution. This is because a beneficiary is residing in a residential treatment program that is under a state’s Department of Corrections control and the beneficiary is not allowed to leave this program until his or her completion. If both of these facts are evident, we will continue to suspend monthly benefits as long as the beneficiary is on supervised probation in a state Department of Corrections’ residential treatment program.
You asked for advice as to whether Robert’s supervised probation constitutes confinement requiring a suspension of benefits. For the reasons discussed below, we believe that Robert’s supervised probation constitutes confinement in a penal institution as defined in the regulations and that his benefits should be suspended.
The memorandum you sent with your request and Missouri court docket entries indicate that Robert was convicted of a felony for Driving While Intoxicated as an aggravated offender. On January 27, 2014, he was sentenced to five years of imprisonment in the Missouri Department of Corrections. In April 2014, the court ordered supervision by the Board of Probation and Parole effective May 28, 2014. As a special condition of his probation, Robert was to be screened for eligibility to enter the Drug Court program. Robert is currently located at the Western Reception & Diagnostic Correctional Center (Center) in St. Joseph, Missouri. According to the Missouri Department of Corrections website, the Center is under the jurisdiction of the Department of Corrections and is classified as a minimum security and diagnostic facility.
Based on information in your memorandum, personnel at the Center stated that a condition of Robert’s probation is that he completes a residential treatment program for substance abuse.
The information you provided also indicated that Robert is not free to leave the treatment facility until he completes the treatment program.
The regulations provide that:
No monthly benefits will be paid to any individual for any month any part of which the individual is confined in a jail, prison, or other penal institution or correctional facility for conviction of a felony. This rule applies to disability benefits (§ 404.315) and child’s benefits based on disability (§ 404.350) effective with benefits payable for months beginning on or after October 1, 1980. For all other monthly benefits, this rule is effective with benefits payable for months beginning on or after May 1, 1983. However, it applies only to the prisoner; benefit payments to any other person who is entitled on the basis of the prisoner’s wages and self-employment income are payable as though the prisoner were receiving benefits.
20 C.F.R. § 404.468(a).
The regulations define confinement as:
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 he or she is temporarily or intermittently outside of that facility (e.g., on work release, attending school, or hospitalized).
20 C.F.R. § 404.468(c).
It is clear that Robert was convicted of a felony. Therefore, the issue is whether he is under confinement as defined in the regulations. As stated above, the Center is under the control and jurisdiction of the Missouri Department of Corrections and serves as a facility for incarceration. Thus, the Center is a penal institution or correctional facility. Additionally, as a condition of his probation, Robert is not free to leave the facility until he completes the treatment program. Finally, he has not been released due to parole or pardon. Thus, Robert is confined in a penal institution for purposes of the Social Security Act (Act) and regulations, and he is not entitled to receive benefits until he is released from the treatment facility.
While this is not a frequently litigated issue, both the Tenth Circuit and Seventh Circuit have found that the agency properly suspended benefits in similar situations. The Tenth Circuit found that the agency properly suspended benefits for a beneficiary confined to a security hospital following a felony conviction. See Wilkins v. Callahan, 127 F.3d 1260 (10th Cir. 1997). In Davel v. Sullivan, 902 F.2d 559 (7th Cir. 1990), the court held that the agency properly suspended benefits for a beneficiary who was concurrently serving a criminal sentence and a civil commitment at a mental health facility under the control of the Department of Health and Social Services. These cases provide additional support for the conclusion that Robert is confined in a penal institution as defined in the Act and regulations.
In summary, it is reasonable to conclude that, based on the evidence you provided, Robert is confined as a result of his felony conviction. Should additional evidence become available, please feel free to contact us for further advice.
Rhonda J. Wheeler
Acting Chief Counsel, Region VII
Assistant Regional Counsel