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
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