PS 02015.048 Texas

A. PS 00-071 Eligibility of Resident in Group Home Pursuant to Texas Adult Parole and Mandatory Supervision Law for Title XVI Benefits

DATE: January 28, 1999

1. SYLLABUS

The issue is whether individuals are entitled to title XVI benefits when they are residing in community-based facilities pursuant to the mandatory supervision provisions of the Texas Adult Parole and Mandatory Supervision Law. The Social Security Act provides (with exceptions not pertinent to this situation) that no person shall be eligible for SSI payments for any month throughout which the person is a resident of a public institution. The facilities in question are group homes operated under contract with the State of Texas, where the State oversees the individual's residency. The opinion concludes that the facilities could be sufficiently controlled by the State to take on a "public" character that would justify the denial of SSI benefits to the residents. However, a factual determination should be made as to the degree of control by the Texas Department of Criminal Justice over the particular facility.

2. OPINION

This memorandum responds to your request for our opinion as to whether an individual is entitled to Title XVI benefits when he is residing at a community-based facility pursuant to the mandatory supervision provisions of the Texas Adult Parole and Mandatory Supervision Law. See Tex. Crim. Proc. Code Ann. art. 42.18 (Vernon Supp. 1995). The issue is whether such an individual is an "inmate in a public institution" within the meaning of the Social Security Act and, therefore, ineligible for Supplemental Security Income (SSI). See §1611(e)(1)(A) of the Social Security Act (the Act); 42 U.S.C. §1382(e)(1)(A). In our opinion, an individual residing in a group home operated under contract with the State of Texas, where the State oversees the individual's residency and pays for his care, would not be entitled to SSI benefits. Our reasoning and suggested factual guidelines follow.

According to the information you provided us, the State of Texas is paying for an SSI recipient's residency at the Esmor Fort Worth Inc. facility while he is on mandatory supervision. As a condition of parole or mandatory supervision, individuals may be required to serve a period in a community-based facility, such as the Esmor facility. Tex. Crim. Proc. Code Ann. art. 42.18, §25(a) (Vernon Supp. 1995).

The Social Security Act provides, with exceptions not here relevant, that no person shall be eligible for SSI payments for any month throughout which such person is an "inmate in a public institution." §1611(e)(1)(A) of the Act; 42 U.S.C. §1382(e)(1)(A). The Social Security Regulations provide the framework for the public institution exception. See 20 C.F.R. §416.200-211. Factors to consider when determining whether a facility is a "public institution" are 1) whether the freedom of the residents to come and go as they choose is restricted, 2) whether it provides food and shelter for the residents, 3) whether some treatment or services are provided, and 4) whether it is operated or controlled by the Federal government, a State, or a political subdivision of a State. 20 C.F.R. §416.201.

Although complete information is not available to us, it appears that the Esmor facility could possibly meet all four factors. Regarding the first factor, a resident's ability to come and go as he chooses is most likely restricted. Prisoners on mandatory supervision remain in the legal custody of the State and are subject to the supervision and control of the pardons and paroles division. Tex. Code Crim. Proc. Ann. art. 42.18, §§2(2), 8(c) (Vernon Supp. 1995).

Second, community-based facilities are authorized to provide food and shelter. Id. at §§8(c), 25(e). Although the pardons and paroles division may charge a reasonable fee to a person housed in a facility for the cost of housing, board, and administrative costs, that would not affect a residents eligibility for SSI. See Id. at §25(g); 20 C.F.R. §416.201.

Third, some services should be provided because the purpose of community-based facilities is to provide housing, supervision, counseling, personal, social, and work training, and other programs. Tex. Code Crim. Proc. Ann. art. 42.18, §25(b) (Vernon Supp. 1995).

The fourth factor appears to be the most difficult to meet. The Esmor facility is not owned by the State. The pardons and paroles division may enter into a contract with a public or private vendor for the operation or management of community-based facilities. Id. at §25(g). Therefore, the issue is whether the facility is sufficiently controlled by the State. See 20 C.F.R. §416.201. We believe the Esmor facility could be sufficiently controlled by the State to take on a "public" character that would justify the denial of SSI benefits to its residents. Looking at the intent of Congress, it is clear that SSI benefits were not to be paid to "individuals in a penal institution." 1972 U.S.C.C.A.N. 5136. Considering Congress's legislative intent, we believe the SSA regulations would support the denial of SSI benefits in this situation. While publicly operated community residences that serve no more than sixteen residents are exempted from the ban on giving SSI benefits to the publicly institutionalized, the Regulations specifically decline to identify publicly operated community residences as "[a] jail or other facility where the personal freedom of anyone who lives there is restricted because that person is a prisoner, is being held under court order, or is being held until charges against that person are disposed of..." §1611(e)(1)(C) of the Act; 20 C.F.R. §§416.211(c), 211(C)(5)(iii)(emphasis added). The Esmor facility could be considered such an "other facility." As a community-based facility, the Esmor facility is subject to the same provisions of Texas law as if the housing were provided directly by the pardons and paroles division, and, thus, it could be considered controlled by the State. See Tex. Code Crim. Proc. Ann. art. 42.18, §25(g) (Vernon Supp. 1995); 20 C.F.R. §416.201. A prisoner on mandatory supervision remains under the supervision and control of the pardons and paroles division. Tex. Code Crim. Proc. Ann. art. 42.18, §2(2)(emphasis added). Lastly, according to the information provided by your office, the State is paying for the individual's care while he resides at the Esmor facility, which further indicates an element of State control. See 20 C.F.R. §416.201. Thus, it appears that the Esmor facility could be under sufficient State administrative control to be considered a "public institution" that would justify the suspension of SSI benefits to an individual residing therein. However, we recommend that your office make a factual determination as to the degree of control the Texas Department of Criminal Justice has over the Esmor facility, paying particular attention to the factors found at 20 C.F.R. §416.201.


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PS 02015.048 - Texas - 10/07/2008
Batch run: 01/27/2009
Rev:10/07/2008