You requested advice on whether benefits to an inmate of the Nebraska Department of
Correctional Services could be reinstated if that inmate was placed into the Nebraska
Department of Correctional Services Re-Entry Furlough Program (“RFP”). Our research
shows that an inmate could be eligible for Title XVI disability benefits depending
upon whether his or her wages were determined to be income, and whether the residence
of his or her authorized sponsor was a public institution. An inmate could be eligible
for Title II disability benefits subject to the work activity rules. An inmate could
be eligible for Title II retirement and survivor benefits subject to the earnings
The documents forwarded with your memorandum requesting advice indicate that the current
revisions to Nebraska’s RFP are effective June 29, 2011, but were first effective
August 11, 2008. See generally Neb. Correctional Servs. Admin Reg. 201.12. The RFP is a conditional release program
that allows inmates of the State correctional system to prepare for parole or discharge
from incarceration by residing outside of a correctional facility under the supervision
of correction center staff, the State parole authority, the State probation authority,
or local law enforcement. See generally Neb. Correctional Servs. Admin Reg. 201.12. Selection for the program is based on
an inmate’s medical needs, financial obligations, pending legal actions, institutional
disciplinary record, county of commitment, program needs, and preparation for discharge
or parole. See Neb. Correctional Servs. Admin. Reg. 201.12 § I. Inmates with violent criminal records,
lengthy arrest records, or multiple incarcerations may not be considered for the program.
See Neb. Correctional Servs. Admin. Reg. 201.12 § I.
While enrolled in the program, an inmate is required to reside in the State of Nebraska,
live in the residence of an authorized sponsor, and maintain employment in the community.
See Neb. Correctional Servs. Admin. Reg. 201.12 §§ IIB, IIIA. The inmate will remain
on the prison’s “out count,” but must remove all personal property from the prison.
See Neb. Correctional Servs. Admin. Reg. 201.12 § IID. While a parole officer must approve
a furlough residence prior to inmate placement, the inmate may not furlough or reside
in a Federally subsidized residence or public housing. See Neb. Correctional Servs. Admin. Reg. 201.12 § IIIA. Furthermore, the inmate must
maintain full-time employment, request permission to make any changes in employment
– including working overtime – and participate in recommended programming, which may
include volunteer activities. See Neb. Correctional Servs. Admin. Reg. 201.12 § IIIB, C.
While participating in the RFP, an inmate is responsible for the costs of his or her
own housing, meals, and general subsistence. See Neb. Correctional Servs. Admin. Reg. 201.12 § IIIF. The inmate, however, must request
permission to meet these expenses from the Nebraska Department of Correctional Services
Inmate Accounting department. See Neb. Correctional Servs. Admin. Reg. 201.12 § IIIF. Specifically, the inmate must
remit his or her entire salary to the Inmate Accounting department. See Neb. Correctional Servs. Admin. Reg. 201.12 § IIIF. Then, the inmate must request
a check from his or her parole officer to meet an expense, or use a debit card pre-loaded
with funds by Inmate Accounting. See Neb. Correctional Servs. Admin. Reg. 201.12 § IIIF.
On Wednesday, June 8, 2011, we contacted Layne G~, the Corrections Programs Administrator
for the Nebraska Department of Correctional Services, and Kathy F~, a supervisory
social worker for the Nebraska State Penitentiary, for further information regarding
the “residence of an authorized sponsor” requirement. Specifically, we inquired as
to whether the residence of an authorized sponsor had to be a single-family home.
Mr. G~ and Ms. F~ informed us that, although a single-family home would be the most
common type of residence of an authorized sponsor, such residence does not have to
be a single-family home, and can be a facility that provides vocational, or other
treatment services, if that type of residence is in the best interest of the inmate.
On June 17, 2011, we requested additional information regarding whether any of the
field offices in Nebraska have been required to make the determination as to whether
an RFP participant is a “resident of a public institution.” On June 24, 2011, Ken
K~, an Operations Analyst for Area II, informed us that the field offices have not
been required to make such a determination.
The Social Security Act (“the Act”), approaches the issue of whether an incarcerated
individual may receive Social Security benefits differently depending upon whether
the individual is receiving benefits under Title II of the Act, or under Title XVI.
Eligibility Under Title II
Under Title II, generally, no monthly benefits shall be paid to any individual for
any month ending with, during, beginning with, or during a period of more than 30
days throughout all of which such individual is confined in a jail, prison, or other
penal institution or correctional facility pursuant to his or her conviction of a
criminal offense. See 42 U.S.C. § 402(x)(1)(A)(i). An individual, however, shall not be considered to be
confined in a jail, prison, or other penal institution or correctional facility if
he or she is residing outside such institution at no expense (other than the cost
of monitoring) to the institution or penal system, or any agency to which the penal
system has transferred jurisdiction over him or her. See 42 U.S.C. § 402(x)(1)(B). The agency has defined the term “confinement” to include
individuals who reside in halfway houses or work release programs. See Program Operations Manual System (“POMS”) GN 02607.200C. However, individuals participating in community-based early release programs outside
of correctional institutions could be eligible for Title II benefits because these
individuals are responsible for paying for their own basic living needs, including
food, clothing, rent, utilities, and other means of subsistence. See POMS GN 02607.200C. See also POMS GN 02607.160.
Under the RFP, participants live outside the correctional facility and are required
to pay for their own housing, meals, and general subsistence. See Neb. Correctional Servs. Admin. Reg. 201.12 § IIIF. Therefore, we believe RFP participants
would not be considered “confined” for the purposes of Title II. In order to be eligible
for the RFP, however, “[i]nmates will be required to maintain full time employment.” Neb. Correctional Servs. Admin. Reg. 201.12 § IIIB (emphasis added).
Based on this requirement, any Title II entitlement would be subject to the rules
regarding work activity, i.e., trial work period, extended period of eligibility,
and deductions for excess earnings beyond the allowable amount. This may reduce or
limit Title II benefits that an RFP participant can receive.
Eligibility Under Title XVI
Title XVI precludes an individual from receiving benefits with respect to any month
if, throughout such month, he or she is a resident of a public institution. See 42 U.S.C. § 1382(e)(1)(a). See also 20 C.F.R. § 416.1325. “Institution” is defined as an establishment that makes available
some treatment or services in addition to food and shelter to four or more persons
who are not related to the proprietor. See 20 C.F.R. § 416.201. “Public institution” means an institution that is operated by
or controlled by the Federal government, a State, or a political subdivision of a
State such as a city or county. See 20 C.F.R. § 416.201.
A “resident of an institution” is an individual who resides in an institution and
who receives, or can receive substantially all of his or her food and shelter, and
some or all of the other services that the institution makes available, regardless
of whether such individual makes payment to the institution for any of the services.
See POMS SI 00520.001B.5. A resident who becomes dissatisfied with the food occasionally, and eats elsewhere
for two or three days is still a resident of an institution because the food is available
to the individual whenever he or she wants to accept it. See POMS SI 00520.001B.5.
The RFP requires a participant to reside in the residence of an authorized sponsor
that is not a Federally subsidized residence or public housing. See Neb. Correctional Servs. Admin. Reg. 201.12 §§ IIB, IIIA. The residence of an authorized
sponsored most likely will be a single-family home, and therefore would not be considered
a public institution. However, as previously noted, the term “residence of an authorized
sponsor” is not limited to a single-family home, and could be a facility that offers
vocational training or other services. Therefore, it is possible that the residence
of an authorized sponsor could be determined to be a public institution. This is a
fact specific question that may need to be evaluated on a case-by-case basis.
Even if the residence of an authorized sponsor is not a public institution, an RFP
participant must maintain full-time employment. See Neb. Correctional Servs. Admin. Reg. 201.12 § IIIB. Therefore, as with Title II disability
benefits, the participant’s earnings would likely affect his or her eligibility for
Title XVI benefits. See generally POMS SI 00815.001 and SI 00815.005.
Based on our research, it is our opinion that a participant of the RFP would be considered
no longer confined for the purposes of Title II, and would be eligible for Title II
retirement and survivor benefits subject to the rules regarding work activity. We
also believe that an RFP participant could be eligible for Title II disability benefits,
but would be subject to the rules regarding work activity because, generally, full-time
employment is inconsistent with the inability to perform substantial gainful activity.
Finally, an RFP participant’s entitlement to Title XVI disability benefits could be
affected by his or her full-time employment if his or her wages were determined to
be income and whether or not the residence of an authorized sponsor was determined
to be a public institution.
Kristi A. S~
Chief Counsel, Region VII
Scott C. K~
Assistant Regional Counsel