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
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.