PR 07211.018 Iowa

A. PR 04-154 Effect of Court Order Assigning Social Security Benefits into Conservatorship Account; Ronald S. P~ for Kasey L. P~, SSN ~

DATE: March 3, 2000

1. SYLLABUS

SSA does not have standing to challenge the court order because SSA was not required to pay Social Security payments directly to a conservatorship and because SSA was not otherwise made a party to the State court civil action. Section 207 of the Social Security Act prohibits attempts to direct the disposition of benefits certified to a representative payee. If a court order directs a payee how to use an individual's Social Security benefit, the payee can use section 207 as a defense against such action.

2. OPINION

You have asked for advice in resolving an issue which has arisen in the Council Bluffs, Iowa, Field Office, involving a state court order directing a representative payee to pay the Social Security benefits he receives on behalf of his daughter into a conservatorship account of which he is not the conservator. Because the Social Security Administration (SSA) was not ordered to pay benefits to someone other than the representative payee and because SSA was not made a party to the action, SSA has no legal standing to intercede in this matter. We will, however, provide you with a letter that can be forwarded to Mr. P~ which may assist his attorney in further legal action.

Factual Background

The materials you sent us with your request include a court order filed August 2, 1999, from Judge James R~ of the Fourth Judicial District of Iowa in the District Court of Iowa in and for Pottawattamie County. His order asserts the following pertinent facts: Kasey L. P~ was born April 23, 1987. Her biological parents are Ronald S. P~ and Sandra J. P~. Ronald and Sandra were divorced on April 23, 1993. Kasey was the only child of the marriage. The divorce decree awarded the parties joint custody with primary physical care remaining with Sandra. Sandra died on February 21, 1999, and Ronald asserted his authority as biological father of Kasey and petitioned for custody. His petition was granted and Kasey was returned to Ronald, presumably from Kasey's maternal grandmother, Adeline G~.

On March 9, 1999, Adeline G~ filed a petition for grandparent visitation and a petition asking the court to appoint her as guardian and conservator for Kasey. Ronald agreed to a visitation schedule but contested the guardianship and conservatorship.

In its August 2, 1999 order, Judge R~ held that the parent-child relationship would best be served if Kasey remained in Ronald's care and custody. He gave Adeline G~ generous visitation rights and named her conservator for Kasey. In addition, Judge R~ ordered that "all social security checks shall be paid into the conservatorship." He further ordered that:

the conservator shall pay from the conservatorship funds for Kasey's music lessons, dance lessons, any medical care related to her asthma or other medical needs, including medications, physicians and any other medical or dental care required by the child without the necessity of any prior court approval. Any other payments for the minor child shall only be after application to this court and court approval. . . [T]he parties shall take whatever steps are necessary to assure that all future social security checks or any other income received on behalf of the minor child shall be paid into the conservatorship.

In re the Guardianship and Conservatorship of Kasey L. P~, Probate No. 35310, Equity No. 76533 (D. Iowa August 2, 1999).

On August 4, 1999, Ronald P~ wrote a letter to SSA informing SSA of the court decision and his concern about releasing Kasey's benefits to the conservatorship. He stated that it was his belief that it was SSA's decision as to who would be Kasey's payee.

On August 18, 1999, Ronald P~, through his attorney, filed a Motion to Amend, Enlarge and/or Modify Order. He alleged, among other things, that all future Social Security checks are intended for Kasey's daily needs and that he was in a better position to understand and account for Kasey's daily needs than the named conservator. He further informed the court that Kasey's Social Security benefits were to be used for her daily needs first, then if any money was left over, it was acceptable for the money to be saved. He asked for modification of the court's order to reflect these changes.

In response, on October 20, 1999, Judge R~ filed an order declining to modify his prior order as it related to Kasey's survivor benefits from Social Security. He ordered that the benefits should be paid to the conservatorship as previously indicated, and stated that he "believe[d] that Ronald S. P~ should not be the named payee of these funds." He stated that the parties should make the necessary arrangements for the conservator, Adeline G~, to be named payee of these funds.

In an undated letter, Ronald P~ notified SSA of the court's October 20, 1999 order. He expressed uncertainty as to how to proceed because the court directed money from the survivor's benefits be paid for items other then Kasey's daily needs which conflicted with his interpretation of his duties as a representative payee. He risked contempt charges, however, if he did not follow the court's order. He stated that he did not have the finances to appeal the matter further.

In a memorandum to you dated November 4, 1999, the Council Bluffs, Iowa, Field Office stated that Ronald P~ had asked SSA to intercede in this matter. The Field Office stated that they had dealt with Mr. P~ on a professional level as director of a local residential facility. They had no reason to question his suitability to continue as representative payee for his daughter, Kasey.

In a letter dated January 30, 2000, Ronald P~ asked that Kasey's benefits be suspended. He indicated that he was returning unused benefits to SSA pending resolution of the conflict between Federal programs and the State of Iowa District Court.

Per my conversation with you on March 1, 2000, SSA records show that Kasey is in current pay status and no checks have been returned.

Analysis

Section 207(a)

Section 207(a) of the Social Security Act (the Act), 42 U.S.C. § 407, states:

(a) The right of any person to any future payment under this title shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this title shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

Id. See also 20 C.F.R. § 404.1820 (1999). Section 207(a) applies to funds which have not yet been paid as well as to funds which have been disbursed. Therefore, under the Act, Social Security benefits are not assignable, transferable, or subject to legal process.

Federal courts have generally interpreted the language of section 207 broadly, and have found violations of section 207 when attempts have been made to secure Social Security benefits from beneficiaries and representative payees. See, e.g., Tidwell v. Schweiker, 677 F.2d 560, 566-68 (7th Cir. 1982) (holding that a consent form which a state psychiatric facility asked those seeking hospitalization to sign authorizing the facility to reimburse itself for the cost of hospitalization from the Social Security benefits of the individual violated section 207); Finberg v. Sullivan, 634 F.2d 50, 63 (3d Cir. 1980) (holding that bank accounts may not be attached without regard to whether they contain Social Security funds); Woodall v. Bartolino, 700 F. Supp. 210, 219-20 (S.D. N.Y. 1983) (holding that court orders may not properly be entered against Social Security benefits when they are managed by representative payees in order to enforce the application of the benefits to the care and maintenance of an institutionalized individual).

A number of courts have held that a state may not compel contribution of Social Security benefits or Supplemental Security Income benefits from involuntarily institutionalized persons. See, e.g., Crawford v. Gould, 56 F.3d 1162 (9th Cir. 1995) (involuntarily institutionalized psychiatric patients' Social Security benefits were beyond the reach of state's attempt to recover the expense of institutional care); King v. Schafer, 940 F.2d 1182 (8th Cir. 1991) (Missouri officials barred from threatening legal action to recover the costs of institutional care of mental patients from Social Security benefits); Brinkman v. Rahm, 878 F.2d 263 (9th Cir. 1989) (mental patients' federal benefits were exempt from collection by state of Washington).

Federal courts in the Second Circuit have held, however, that voluntary use of Social Security benefits to pay for the costs of institutional care does not violate section 207. See Fetterusso v. New York, 989 F.2d 322, 328 (2d Cir. 1990) (voluntary use of Social Security benefits to pay for the costs of institutional care for individuals committed upon findings of not guilty by reason of mental illness does not violate the anti-alienation statute); Johnson v. Wing, 12 F. Supp.2d 311, 315-16 (S.D. N.Y. 1998) (practice of requiring resident of emergency housing to contribute a portion of her Supplemental Security Income benefits towards costs of her upkeep at the facility did not violate section 207 where the resident voluntarily agreed to her placement under the terms and conditions as they were explained to her which included contribution of a portion of benefits).

Furthermore, "or other legal process" has been held to encompass not only the use of formal legal machinery, but also "resort to express or implied threats and sanctions." Fetterusso v. New York, 898 F.2d 322, 328 (2d Cir. 1990). See also King v. Schafer, 940 F.2d 1182, 1185 (8th Cir. 1991), cert. denied, Crytes v. Schafer, 502 U.S. 1095 (1992) ("Other legal process" includes a threat to sue representative payees or to withhold state income tax refunds); Kriegbaum v. Katz, 909 F.2d 70 (2d Cir. 1990) (New York's attempts to secure use of insanity acquittees' Social Security benefits to defray cost of institutional care through special proceedings was "legal process" against benefits which was prohibited by the Social Security Act). In Philpott v. Essex County Welfare Board, 409 U.S. 413 (1973), the United States Supreme Court stated that section 207 "imposes a broad bar against the use of any legal process to reach all social security benefits. That is broad enough to include all claimants, including a State." Id. at 417.

The above analysis of existing case law shows how conscientiously courts have followed section 207. We believe Judge R~'s order can be construed as assigning or transferring Kasey's Social Security payments to another. Judge R~ ordered Ronald P~ to pay Kasey's benefits to the conservatorship, but he is not the conservator and has no control over the funds. Furthermore, a court order clearly constitutes "legal process." As a result, we believe Judge R~'s order violates section 207. However, because SSA was not ordered to pay the benefits to the conservatorship and SSA was not made a party to the state court civil action, SSA does not have a legal position to ask the court to reconsider its order. If any court action is taken, it should be taken by Ronald P~.

Representative Payment

Judge R~'s order also raises issues regarding representative payment. If Ronald P~ complies with the court order, he may violate his duties as a representative payee.

The Federal regulations governing the responsibilities of a representative payee provide:

A representative payee has a responsibility to -

(a) Use the payments he or she receives only for the use and benefit of the beneficiary in a manner and for the purposes he or she determines, under the guidelines in this subpart, to be in the best interests of the beneficiary. . .

20 C.F.R. § 404.2035 (1999). The regulations further provide:

We will consider that payments we certify to a representative payee have been used for the use and benefit of the beneficiary if they are used for the beneficiary's current maintenance. Current maintenance includes cost incurred in obtaining food, shelter, clothing, medical care, and personal comfort items.

20 C.F.R. § 404.2040(a) (1999). After the representative payee has used the benefit payments in accordance with the regulations, any remaining amount shall be conserved or invested on behalf of the beneficiary. 20 C.F.R. § 404.2045(a)(1999). SSA's obligation to the beneficiary is "completely discharged" when a correct payment is made to a representative payee on behalf of the beneficiary. The payee in his or her personal capacity (and not SSA) may be liable if the payee misuses the beneficiary's benefits. 20 C.F.R. § 404.2041 (1999). A representative payee is accountable for the use of benefits, however, and SSA may require periodic accounting reports. 20 C.F.R. § 404.2065 (1999).

Ronald P~ has no control over Kasey's Social Security benefits once he releases them to the conservatorship. Therefore, it appears that he is unable to fulfill his responsibility to use the payments for the "use and benefit" of Kasey in a manner he determines to be in Kasey's best interest.

Although SSA's obligation is discharged when a correct payment is made to a representative payee on behalf of the beneficiary, SSA is responsible for ascertaining that Ronald P~ is using the Social Security payments for Kasey's benefit. If the court order precludes him from fulfilling this responsibility, it may be appropriate to select another representative payee.

Conclusion

We realize that the question of whether there has been a violation of section 207 is a federal question. However, because SSA was not required to pay Kasey's Social Security payments directly to the conservatorship, and because SSA was not otherwise made a party to the state court civil action, SSA does not have standing to challenge Judge R~'s order. We are not in a legal position to ask the court to reconsider its order or to appeal the order. If any court action is to be taken, it should be taken by Ronald P~, the person subject to the court's order.

SSA's responsibility for protecting benefits against legal process and assignment ends when the beneficiary is paid. Once the benefits are paid, however, they continue to be protected under section 207 as long as they are still identifiable as Social Security payments. If a beneficiary is ordered to pay his or her benefits to someone else, or his or her benefits are taken by legal process, section 207 can be used as a personal defense against such actions.

In addition, SSA is responsible for ascertaining that Ronald P~, as representative payee, is using the Social Security payments for Kasey's benefit. If, by virtue of the court order, he is not able to do so, it may be appropriate to select another representative payee.

We are providing you with the attached letter to send to Mr. P~. The letter advises him of SSA's position regarding section 207 of the Act and explains the legal analysis involved in this issue.

Frank V. S~ III
Acting Regional Chief Counsel, Region VII

By ______________
Rhonda J. W~
Assistant Regional Counsel

EnclosureDear Mr. P~:

You have asked the Social Security Administration (SSA) to intercede on your behalf in contesting a court order filed August 2, 1999, by Judge James R~ of the Fourth Judicial District of Iowa in the District Court of Iowa in and for Pottawattamie County. In this order, Judge R~ gave you custody of Kasey, but named Adeline G~ as conservator, and ordered you to pay Kasey's Social Security benefits into the conservatorship. You filed a Motion to Amend, Enlarge and/or Modify Order on August 18, 1999, asking for modification of the Judge's order regarding, among other things, his requirement that Kasey's Social Security benefits by paid to the conservatorship; however, Judge R~ declined to modify his order in this regard.

Because SSA was not ordered to pay benefits to someone other that the representative payee and because SSA was not made a party to the action, SSA has no legal standing to intercede in this matter. This letter is to advise you of SSA's position regarding the transfer and assignment of Social Security benefits by legal process. You may provide this letter to your attorney to assist you in further legal action.

Section 207(a)

Section 207(a) of the Social Security Act (the Act), 42 U.S.C. § 407, states:

(a) The right of any person to any future payment under this title shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this title shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

Id. See also 20 C.F.R. § 404.1820 (1999). Section 207(a) applies to funds which have not yet been paid as well as to funds which have been disbursed. Therefore, under the Act, Social Security benefits are not assignable, transferable, or subject to legal process.

Federal courts have generally interpreted the language of section 207 broadly, and have found violations of section 207 when attempts have been made to secure Social Security benefits from beneficiaries and representative payees. See, e.g., Tidwell v. Schweiker, 677 F.2d 560, 566-68 (7th Cir. 1982) (holding that a consent form which a state psychiatric facility asked those seeking hospitalization to sign authorizing the facility to reimburse itself for the cost of hospitalization from the Social Security benefits of the individual violated section 207); Finberg v. Sullivan, 634 F.2d 50, 63 (3d Cir. 1980) (holding that bank accounts may not be attached without regard to whether they contain Social Security funds); Woodall v. Bartolino, 700 F. Supp. 210, 219-20 (S.D. N.Y. 1983) (holding that court orders may not properly be entered against Social Security benefits when they are managed by representative payees in order to enforce the application of the benefits to the care and maintenance of an institutionalized individual).

A number of courts have held that a state may not compel contribution of Social Security benefits or Supplemental Security Income benefits from involuntarily institutionalized persons. See, e.g., Crawford v. Gould, 56 F.3d 1162 (9th Cir. 1995) (involuntarily institutionalized psychiatric patients' Social Security benefits were beyond the reach of state's attempt to recover the expense of institutional care); King v. Schafer, 940 F.2d 1182 (8th Cir. 1991) (Missouri officials barred from threatening legal action to recover the costs of institutional care of mental patients from Social Security benefits); Brinkman v. Rahm, 878 F.2d 263 (9th Cir. 1989) (mental patients' federal benefits were exempt from collection by state of Washington).

Federal courts in the Second Circuit have held, however, that voluntary use of Social Security benefits to pay for the costs of institutional care does not violate section 207. See Fetterusso v. New York, 989 F.2d 322, 328 (2d Cir. 1990) (voluntary use of Social Security benefits to pay for the costs of institutional care for individuals committed upon findings of not guilty by reason of mental illness does not violate the anti-alienation statute); Johnson v. Wing, 12 F. Supp.2d 311, 315-16 (S.D. N.Y. 1998) (practice of requiring resident of emergency housing to contribute a portion of her Supplemental Security Income benefits towards costs of her upkeep at the facility did not violate section 207 where the resident voluntarily agreed to her placement under the terms and conditions as they were explained to her which included contribution of a portion of benefits).

Furthermore, "or other legal process" has been held to encompass not only the use of formal legal machinery, but also "resort to express or implied threats and sanctions." Fetterusso v. New York, 898 F.2d 322, 328 (2d Cir. 1990). See also King v. Schafer, 940 F.2d 1182, 1185 (8th Cir. 1991), cert. denied, Crytes v. Schafer, 502 U.S. 1095 (1992) ("Other legal process" includes a threat to sue representative payees or to withhold state income tax refunds); Kriegbaum v. Katz, 909 F.2d 70 (2d Cir. 1990) (New York's attempts to secure use of insanity acquittees' Social Security benefits to defray cost of institutional care through special proceedings was "legal process" against benefits which was prohibited by the Social Security Act). In Philpott v. Essex County Welfare Board, 409 U.S. 413 (1973), the United States Supreme Court stated that section 207 "imposes a broad bar against the use of any legal process to reach all social security benefits. That is broad enough to include all claimants, including a State." Id. at 417.

The above analysis of existing case law shows how conscientiously courts have followed section 207. We believe Judge R~'s order can be construed as assigning or transferring Kasey's Social Security payments to another. Judge R~ ordered you to pay Kasey's benefits to the conservatorship, but you are not the conservator and have no control over the funds. Furthermore, a court order clearly constitutes "legal process." As a result, we believe Judge R~'s order violates section 207. However, because SSA was not ordered to pay the benefits to the conservatorship and SSA was not made a party to the state court civil action, SSA does not have a legal position to ask the court to reconsider its order. If any court action is taken, it should be taken by you.

Representative Payment

Judge R~'s order also raises issues regarding representative payment. If you comply with the court order, you may violate your duties as a representative payee.

The Federal regulations governing the responsibilities of a representative payee provide:

A representative payee has a responsibility to -

(a) Use the payments he or she receives only for the use and benefit of the beneficiary in a manner and for the purposes he or she determines, under the guidelines in this subpart, to be in the best interests of the beneficiary. . .

20 C.F.R. § 404.2035 (1999). The regulations further provide:

We will consider that payments we certify to a representative payee have been used for the use and benefit of the beneficiary if they are used for the beneficiary's current maintenance. Current maintenance includes cost incurred in obtaining food, shelter, clothing, medical care, and personal comfort items.

20 C.F.R. § 404.2040(a) (1999). After the representative payee has used the benefit payments in accordance with the regulations, any remaining amount shall be conserved or invested on behalf of the beneficiary. 20 C.F.R. § 404.2045(a)(1999). SSA's obligation to the beneficiary is "completely discharged" when a correct payment is made to a representative payee on behalf of the beneficiary. The payee in his or her personal capacity (and not SSA) may be liable if the payee misuses the beneficiary's benefits. 20 C.F.R. § 404.2041 (1999). A representative payee is accountable for the use of benefits, however, and SSA may require periodic accounting reports. 20 C.F.R. § 404.2065 (1999).

You have no control over Kasey's Social Security benefits once you release them to the conservatorship. Therefore, it appears that you may be unable to fulfill your responsibility to use the payments for the "use and benefit" of Kasey in a manner you determine to be in Kasey's best interest.

Although SSA's obligation is discharged when a correct payment is made to a representative payee on behalf of the beneficiary, SSA is responsible for ascertaining that you are using the Social Security payments for Kasey's benefit. If the court order precludes you from fulfilling this responsibility, it may be appropriate to select another representative payee.

Conclusion

We realize that the question of whether there has been a violation of section 207 is a federal question. However, because SSA was not required to pay Kasey's Social Security payments directly to the conservatorship, and because SSA was not otherwise made a party to the state court civil action, SSA does not have standing to challenge Judge R~'s order. We are not in a legal position to ask the court to reconsider its order or to appeal the order. If any court action is to be taken, it should be taken by you, the person subject to the court's order.

SSA's responsibility for protecting benefits against legal process and assignment ends when the beneficiary is paid. Once the benefits are paid, however, they continue to be protected under section 207 as long as they are still identifiable as Social Security payments. If a beneficiary is ordered to pay his or her benefits to someone else, or his or her benefits are taken by legal process, section 207 can be used as a personal defense against such actions.

In addition, SSA is responsible for ascertaining that you, as representative payee, are using the Social Security payments for Kasey's benefit. If, by virtue of the court order, you are not able to do so, it may be appropriate to select another representative payee.

We hope this letter will be of assistance to you.

B. PR 03-155 Court Order Directing Use of Monthly Social Security Benefits - John A. H~(Revised)_11

DATE: July 15, 2003

1. SYLLABUS

Under section 207 of the Social Security Act, social security benefits and the associated rights under the SS Act are generally neither assignable nor subject to legal process. Section 207 prohibits attempts to direct the disposition of benefits certified to a representative payee. SSA does not get involved in section 207 issues that occur after payment to a beneficiary has been completed. If a court order directs a payee how to use an individual's benefits, the payee can use sectin 207 as a defense against such action.

2. OPINION

Your office has requested our assistance in reviewing a court order, issued by the Montana Thirteenth Judicial District Court, Carbon County, to determine whether the order is contrary to Social Security Administration (SSA) regulations and policy. The court order directs the guardian/conservator and representative payee, Tracy J. R~, to deposit the future Social Security benefits of John A. ~H (John), a minor child, in a restricted guardian/conservator account at Edward J., an investment company in Red Lodge, Montana. The court order further provides that Ms. R~ shall be paid a monthly stipend of $548 from the restricted account for John's care and support, i.e., current maintenance. You have informed us that John's monthly Social Security benefits amount is $1095. For the reasons set forth below, we believe the court order violates section 207(a) of the Social Security Act (Act), 42 U.S.C. § 407(a).

Section 207(a) of the Act states:

The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

42 U.S.C. § 407(a). See also POMS GN 02410.001. "Under the Act, therefore, Social Security benefits and the associated rights under the Social Security Act are generally neither assignable nor subject to legal process. Indeed, section 207's broad bar against the use of any legal process to reach Social Security benefits includes not only all claimants or creditors, but also states." Memorandum from Regional Chief Counsel, Philadelphia, to Regional Commissioner, Philadelphia, Pennsylvania Support Decree Assigning Social Security Payments - Rachel R. M~, SSN: ~ (March 25, 1994) (citing Philpott v. Essex County Welfare Bd., 409 U.S. 413, 416-17 (1973).

"Federal courts have generally interpreted section 207 broadly. Courts have upheld the bar of section 207 when attempts have been made to alienate Social Security benefits from both recipients and representative payees." Id. (citing Tidwell v. Schweiker, 677 F.2d 560, 566-68 (7th Cir. 1982) (holding that a consent form, which a state psychiatric facility asked those seeking hospitalization to sign authorizing the facility to reimburse itself for the cost of hospitalization from the Social Security benefits of the individual, violated section 207); Woodall v. Bartolino, 700 F. Supp. 210, 219-20 (S.D. N.Y. 1983) (holding that court orders may not properly be entered against Social Security benefits when they are managed by representative payees in order to enforce the application of the benefits to the care and maintenance of an institutionalized individual).

"Furthermore, it is well-established that the Federal Government, as sovereign, is immune from suits in and the orders of state courts, unless the sovereign has consented to submit itself to the jurisdiction of such court, which in the present case, it has not." Memorandum from Regional Chief Counsel, Chicago, to Manager, Cleveland Downtown Field Office, Charles C~, SSN ~, Advice About State Court Order to Appoint Representative Payee (October 4, 2002) (citing United States v. Sherwood, 312 U.S. 584 (1941)).

Moreover, if Ms. R~ "complies with the court's order, she may violate her responsibilities as a representative payee." Memorandum, Pennsylvania Support Decree, supra (citing 42 U.S.C. § 1383(a)(2)). "Under the regulations, a representative payee has the responsibility to ensure [that Social Security] benefits are used only for the use and benefit of the beneficiary in the manner she determines to be in the best interests of the beneficiary." Id. (citing § 416.635); see also 20 C.F.R. § 404.2035. "In this case, it could be said that by complying with the court order, [Ms. R~] has allowed her rights and responsibilities as a representative payee to be usurped: she is not making the decisions about the use of the funds, but has turned them over to [the court and to Edward J.] in accordance with the court order." Id.

In sum, section 207 of the Act is intended to protect the rights and benefits arising under the Act "from all attempts to use legal process to alienate them, unless Congress has specifically indicated otherwise." Id. We believe the court's order, which can be construed as assigning control of John's Social Security benefits to another, is violative of section 207 because it constitutes legal process that seeks to affect rights arising under the Act. "Identifiable Social Security benefits cannot be taken by judicial order, and in this case it appears that they have been." Id. (citing Woodall, 700 F. Supp. at 221). Moreover, in the state court process used here, the state court has taken upon itself the authority to decide who shall manage the child's Social Security benefits, and how they shall be managed. However, Congress has granted the power to make that selection exclusively to the Commissioner in section 205(j) of the Act, and the Commissioner's regulations and decisions issued thereunder are clearly to be given deference. See Washington Department of Social and Health Services v. Guardianship Estate of Danny Keffeler, 123 S.Ct. 1017 (2003). Because the state court's actions are contrary to the controlling Federal statute and the decision of the Commissioner issued thereunder, the state court's attempt to assume such authority must fail under the Supremacy Clause of the United States Constitution._22

As a matter of litigation policy, SSA does not get involved in section 207 issues that arise after payment to the beneficiary has been completed. Therefore, if any court action is to be taken at this time, Ms. R~, the person subject to the court's order, through her attorney, should take it.

Yvette G. K~
Acting Regional Chief Counsel, Region VII

By ______________
Thomas H. K~
Assistant Regional Counsel

_11 On November 5, 2002, we issued an opinion stating the court order did not contravene SSA regulations.

_22 "The Supremacy Clause of the Constitution, Article VI, cl. 2, states that the 'Constitution, and the laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land, and the Judges in every State shall be bound thereby, anything in the Constitution of Laws of any State to the Contrary notwithstanding.' The Supreme Court has recognized it 'is a seminal principle of our law that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States and cannot be controlled by them.'" Memorandum from OGC Policy and Legislation Division, to Office of Disability Division of Medical and Vocational Policy, Issues Related to Disability Examiners Ordering Consultative Examinations and Tests and Medical and Psychological Consultants Developing Cases for Disability Determination Services (DDS) in Other States (August 21, 1998) (citing Hancock v. Train, 426 U.S. 167, 178 (1976) (internal quotation marks omitted).


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PR 07211.018 - Iowa - 08/04/2008
Batch run: 01/27/2009
Rev:08/04/2008