Under section 1631(a)(2)(F) of the Act, 42 U.S.C. § 1383(a)(2)(F), if a child under
the age of 18 is awarded more than six months' worth of SSI past-due benefits, the
child's representative payee is required to establish a "dedicated account" into which
those past-due benefits must be deposited. The law also restricts the items and services
that the payee is permitted to purchase with funds from the dedicated account. See
id. The funds may be used only for medical treatment, education or job training, or
for other expenses, provided they are related to the child's impairment. See id.;
see also 20 C.F.R. §§ 416.546, 416.640(e) (2001); POMS GN 00602.140.
Under 20 C.F.R. § 416.640(d), a payee may satisfy a beneficiary's debt arising prior
to the first month for which payments are certified to the payee if the beneficiary's
current and reasonably foreseeable needs are met. See also POMS GN 00602.030A. POMS GN 00602.140C.2.b. provides that funds in a dedicated account may be used for repayment of past debt,
including self-reimbursement by a creditor payee, for those items or services that
were related to the child's impairment and benefitted the child. SSA approval is required
when a payee is also the creditor. See POMS GN 00602.030B.
As an initial question, you have asked whether a child's past foster care costs are
considered a legal debt that may be repaid from funds in a dedicated account. In Colorado,
parents have a duty to provide reasonable support for their children and are obligated
to contribute to the cost of their child's residential placement. See Colo. Rev. Stat.
§ 19-1-115(4)(d); People ex rel. N.D.S., 5 P.3d 382, 384 (Colo. App. 2000). "Foster
care fees are considered child support obligations, and under both statute and rules
adopted by the State Department of Social Services (now Department of Human Services),
the amount of the fee for which the parents are obligated is based upon application
of the child support guidelines." People ex rel. S.M.S., 907 P.2d 739, 740 (Colo.
App. 1995). Thus, the costs of foster care are considered a legal debt owed by a child's
parents. The question arises as to whether a debt of the child's parents is also a
debt of the child SSI beneficiary. However, we need not decide that question in a
strict legal sense. Under SSA policy, a foster care agency that acts as representative
payee for an SSI recipient may recover past expenses from dedicated account funds
if those expenses are related to the child's impairment. See POMS GN 00602.140D. It is the agency payee's responsibility to explain why or how an item or service
(other than medical treatment; and education or job skills training) relates to the
child's impairment. See POMS GN 00602.140C.2. So, the agency (that is the subject of this opinion) may be reimbursed for a child's
past foster care costs that are related to the child's impairment.
Finally, as noted above, you have asked whether dedicated account funds may be used
for "care and maintenance," as Ms. H~ has requested. Under SSA policy, basic maintenance
costs (food, shelter, clothing, and personal items) not related to the child's impairment
may not be paid with dedicated account funds. See POMS GN 00602.140B.4. If "care and maintenance" is the equivalent of "basic maintenance," then dedicated
account funds generally may not be used for "care and maintenance" costs under SSA's
policy. The GC has previously stated:
Although it would not in our view be the most legally supportable interpretation,
we do not believe SSA is legally precluded from going further and adopting a policy
under which expenditures for basic needs such as food, shelter, and utilities would,
as a general rule, be considered related to the child's impairment and an allowable
dedicated account expenditure.
Memorandum, Expenditures of Dedicated Account Funds for Basic Living Expenses, OGC
(Fried) to Office of Program Benefits (O'Connell), SSA, July 8, 1997 (copy attached).
However, SSA's longstanding policy is that dedicated funds may not be used to reimburse
care and maintenance expenses. See Note to file, Dedicated Accounts and Expenditures
for Residential Facilities, OGC (Yudin), June 9, 2000 (copy attached). Therefore,
in the absence of any regulatory change, that is the policy to be followed in this
Deana R. E~
Regional Chief Counsel, Region VIII
By Thomas H. K~
Assistant Regional Counsel