TN 25 (06-15)
PR 06805.036 North Carolina
A. PR 15-118 Benefits when Individual Found Incompetent
DATE: May 7, 2015
This opinion provides valuable information regarding a beneficiary who has been committed and confined to an institution (i.e., mental health institution) in North Carolina because a court found her incompetent to stand trial. Subsequent to this decision, the court also changed her commitment status from criminal or forensic to civil. The opinion provides information on how a change in commitment status from criminal to civil does not result in reinstatement of her benefits.
You asked whether the Social Security Administration (SSA) should retroactively reinstate disability insurance benefits (DIB) for a number holder during her period of commitment to a hospital after a North Carolina court dismissed criminal charges against her because NH remained incompetent to stand trial and was not likely to regain competency to stand trial in the future.
SSA should not reinstate the number holder’s DIB for during her period of commitment to the hospital, and SSA properly suspended NH’s DIB during her civil commitment to a hospital through November 2014.
According to the information provided, SSA found N~, the number holder (NH), entitled to DIB from January 1979 to June 1981, and again starting in December 1981. In May 1991, A North Carolina prosecutor charged NH with two counts of assault with a deadly weapon and one count of breaking and entering. However, a North Carolina court found NH incompetent to stand trial and ordered NH hospitalized starting July 23, 1991. On March 6, 2006, a doctor at Dorothea Dix Hospital re-evaluated NH’s competence to stand trial. The doctor concluded NH remained incompetent to stand trial and was unlikely to gain competency in the foreseeable future. Based on the doctor’s re-evaluation, on November 15, 2006, a North Carolina judge dismissed NH’s pending criminal charges. On February 8, 2007, another North Carolina judge ordered NH’s discharge from forensic commitment, but also ordered NH civilly committed to an inpatient facility for no more than ninety days at a hospital or “any other appropriate 24-hour facility.” In May 2007, NH unsuccessfully contested her continued hospitalization, and a court recommitted NH for another 180 days. Following this recommitment order, Dorothea Dix Hospital initiated plans to transfer NH to Cherry Hospital.
On June 7, 2007, Dorothea Dix Hospital discharged NH for transfer to Cherry Hospital, a state operated healthcare facility, for further evaluation and treatment. Cherry Hospital admitted NH on June 7, 2007, for long-term care. On November 4, 2014, Cherry Hospital discharged NH and she transferred to Longleaf Neuro-Medical Treatment Center (Longleaf). Longleaf’s website indicates it serves two types of patients: (1) adults with severe and persistent mental illness who also have long-term medical conditions requiring residential, medical, and nursing care and who have been referred solely from North Carolina’s psychiatric hospitals; and (2) adults diagnosed with Alzheimer’s or other related dementia whose assaultive and combative behavior has resulted in denial of care in a traditional nursing home setting. See Longleaf Neuro-Medical Treatment Center, http://www.longleafneuromedical.ncdhhs.gov/ (last visited May 1, 2015).
SSA suspended NH’s DIB from February 1995 through November 2014. SSA reinstated NH’s benefits in December 2014. In a letter dated March 6, 2015, NH’s legal guardian asserted SSA should not have suspended NH’s DIB from June 7, 2007, through November 2014, the period NH remained hospitalized at Cherry Hospital. NH’s legal guardian asserted NH did not appear to be under a civil commitment at Cherry Hospital and would have transferred to a group home or other assisted living facility instead of Cherry Hospital on June 7, 2007, if SSA had reinstated NH’s DIB at the time.
Under section 202(x) of the Social Security Act (Act), SSA cannot pay DIB to any individual for any month (or part of a month) for which the individual is confined by court order in an institution at public expense in connection with a finding that the individual is incompetent to stand trial under an allegation of a criminal offense. See Act § 202(x)(1)(A)(ii)(III); Program Operations Manual (POMS) GN 02607.001A, B.8, C.3; POMS GN 02607.040; POMS GN 02607.320; POMS GN 02607.330. The POMS defines “confinement,” as used in section 202(x) of the Act, as residing in a correctional or mental health institution. See Act § 202(x)(1)(A)(i)-(iii); POMS GN 02607.001B.2. Confinement ends when an individual is released, either conditionally or unconditionally, from the care and supervision of the correctional or mental health institution and such institution ceases to meet the individual's basic living needs. See Act § 202(x)(1)(B)(ii); POMS GN 02607.320C; POMS GN 02607.330A.4.
For an individual who has been committed and confined to an institution because a court found her incompetent to stand trial, a change in commitment status from criminal or forensic to civil does not result in reinstatement of benefits. See POMS GN 02607.852A.1. After a court changes an individual’s commitment status, SSA considers the individual to be not guilty by reason of insanity (NGRI). See POMS GN 02607.001B.7; POMS GN 02607.852A.1. SSA will reinstate benefits for such an individual if the individual is no longer under the care and supervision of an institution and the institution no longer provides the individual with basic living needs, that is, food, clothing, and shelter. See POMS GN 02607.850A.1; POMS GN 02607.852A.1. SSA will also reinstate benefits if the individual is on official conditional release and resides in a group home in the community. See POMS GN 02607.850A.1.c.
Under North Carolina law, when a court concludes a criminal defendant is incompetent to stand trial, the court must determine whether the defendant also requires involuntary commitment. See N.C. Gen. Stat. Ann. §§ 15A-1002(b1), 15A-1003(a) (West 2014). If the court places the defendant under involuntary commitment at a hospital or institution, the court must require the hospital or institution to report the condition of the defendant, and the report must state the likelihood of the defendant gaining competency to stand trial. See N.C. Gen. Stat. Ann. §15A-1004(d) (West 2014). A court may dismiss charges against a defendant when the earliest of the following occurs: (1) it appears to the court that a defendant who has been found incompetent to stand trial is not likely to gain capacity to proceed; (2) the defendant has been deprived of her liberty for a period equal to the maximum punishment allowable; or (3) a period of five years since the determination of incapacity to proceed for misdemeanor charges, or a period of ten years for felony charges, has elapsed. See N.C. Gen. Stat. Ann. § 15A-1008 (West 2014).
For an individual whom the court has initially committed as a result of conduct resulting in a violent crime charge, including crime involving assault with a deadly weapon, if an attending physician determines further commitment will be necessary, the court will hold a rehearing on the need for additional commitment of the individual. See N.C. Gen. Stat. Ann. § 122C-276(a) (West 2014). The court can order a second commitment of up to 180 days. See N.C. Gen. Stat. Ann. § 122C-276(e) (West 2014). A court may order additional commitments after the second commitment, but each subsequent commitment can last only up to one year. See N.C. Gen. Stat. Ann. § 122C-276(f) (West 2014).
After a North Carolina prosecutor charged NH with two counts of assault with a deadly weapon and one count of breaking and entering in May 1991, a North Carolina court determined NH incompetent to stand trial, and NH remained hospitalized continuously starting in July 1991. A court dismissed the criminal charges against NH in November 2006 upon determining NH was not likely to gain competency to stand trial. However, the court did not lift NH’s involuntary commitment and she was not discharged from the hospital at that time. On February 8, 2007, while NH was still hospitalized, a North Carolina court ordered an additional civil commitment not to exceed ninety days.
NH’s Dorothea Dix Hospital treatment records indicate that in May 2007, a North Carolina court ordered an additional involuntary commitment of 180 days. Following this commitment order, Dorothea Dix Hospital transferred NH to Cherry Hospital in June 2007. NH’s Dorothea Dix Hospital discharge records and Cherry Hospital admission records do not indicate any court had lifted the May 2007 180-day civil commitment order at the time of the transfer, or that Dorothea Dix Hospital transferred NH pursuant to any official or official conditional release from civil confinement. Nothing in the evidence provided indicates NH was on official or official conditional release from civil commitment before her transfer from Cherry Hospital to Longleaf in November 2014. Moreover, Cherry Hospital also provided NH with her basic living needs throughout her stay from June 2007 through November 2014. Case law and the legislative history of section 202(x) of the Act indicate the purpose of this nonpayment provision is to conserve scarce Social Security resources and avoid payment of benefits to people whom taxpayers are already supporting. See Davis v. Bowen, 825 F.2d 799, 801 (4th Cir. 1987) (noting congressional policy goal of section 202(x) of the Act is to conserve scarce Social Security resources where an individual’s basic economic needs are provided from other public sources); 140 Cong. Rec. H3198, *H3200-01 (daily ed. May 10, 1994) (statements of Reps. Bunning and Goss); POMS PR 06805.024A.2. Thus, for the period from June 2007 through November 2014, NH continued her confinement as defined in section 202(x) of the Act and did not qualify for reinstatement of her DIB. See POMS GN 02607.850A.1 and POMS GN 02607.852A.1.
Based on the evidence provided, NH remained confined in a mental health institution based on a civil commitment order when she transferred to Cherry Hospital in June 2007, and Cherry Hospital provided NH with her basic living needs until her discharge in November 2014. Therefore, SSA properly suspended NH’s DIB through November 2014 and should not retroactively reinstate her DIB for the period from June 2007 through November 2014.
Mary Ann Sloan
Regional Chief Counsel
By: /s/ _
Assistant Regional Counsel
^Regional Attorneys Opinions
B. PR 12-139 Confinement of Sexually Dangerous Persons – North Carolina
DATE: September 28, 2012
This opinion instructs that North Carolina does not have a statutory sexually dangerous person (SDP) law in effect as of September 28, 2012. Since North Carolina does not have a law permitting the court-ordered confinement of SDPs, we will not suspend benefits under section 202(x)(1)(A)(iii) of the Social Security Act in that state.
You have asked whether North Carolina has any statutory provisions permitting the court-ordered confinement of an individual identified as a sexually dangerous person (SDP).
We conclude North Carolina does not have a statutory scheme providing for the court-ordered confinement of an SDP.
Program Operations Manual System (POMS) GN 02607.350 states that the Social Security Administration (SSA) may suspend a number holder’s benefits if the state in which the number holder committed a sexual crime has a law permitting the court-ordered commitment of SDPs.
North Carolina does not appear to have a law permitting the court-ordered confinement of SDPs. North Carolina has established programs to monitor SDPs under article 27A of its statutory chapter on criminal law. See N.C. Gen. Stat. Ann. §§ 14-208.5-208.45 (West 2012). However, this article does not include any provisions for monitoring SDPs via court-ordered confinement.
Also, we note Florida and South Carolina have laws providing for the involuntary court-ordered commitment of SDPs under their sections on health or mental health, see Fla. Stat. Ann. § 394.910 (West 2012), S.C. Code Ann. § 44-48-20 (2012). In contrast, North Carolina’s mental health chapter provides for involuntary commitment only for individuals who are mentally ill or substance abusers “and dangerous to self or others.” N.C. Gen. Stat. Ann. §§ 122C-3, 122C-201 (West 2012). The definitions of those terms for that chapter do not specifically encompass SDPs.
The National Center for Prosecution of Child Abuse also compiled a list of all statutory schemes permitting court-ordered commitment of SDPs, last updated in April 2012, which further indicates North Carolina did not have one. See Civil Commitment of Sex Offenders, http://www.ndaa.org/pdf/Sex%20Offender%20Civil%20Commitment-April%202012.pdf
Our research indicates North Carolina does not have a statutory scheme providing for the court-ordered confinement of SDPs.
Mary Ann Sloan
Regional Chief Counsel
Assistant Regional Counsel
The POMS address confinement in an institution in connection with a finding that an individual is incompetent to stand trial only starting February 1, 1995, because the Act did not address such confinements until Congress revised the Act on that date. See Pub. L. No. 103-387, §4(a), 108 Stat. 4071, 4076 (1994).