QUESTION
You asked whether an Order Granting Petition for Continued Habilitation shows Southwestern
State Hospital - Rose has “legal custody” of its developmentally disabled patients
for determining whether Rose is a proper applicant for replacement Social Security
number (SSN) cards on the patients’ behalf.
OPINION
If you determine that any of the developmentally disabled adult patients at Rose are
not mentally or physically able to complete and sign their own applications for a
replacement SSN and that those patients do not have legal guardians, a current order
of the type Rose submitted in this case could establish Rose as a state mental hospital
with legal custody. However, we note the particular Order Granting Petition for Continued
Habilitation provided here has expired and, therefore, would not establish legal custody.
BACKGROUND
According to its website, the Georgia Department of Behavioral Health & Developmental
Disabilities (DBHDD) is a State agency responsible for policies, programs, and community-based
services for people with severe and persistent mental illness, substance use disorders,
and developmental and intellectual disabilities. [1] See About DBHDD, http://dbhdd.georgia.gov/about-dbhdd (last visited Oct. 28, 2013); DBHDD Overview Fact Sheet, https://dbhdd.georgia.gov/sites/dbhdd.georgia.gov/files/related_files/site_page/DBHDD%20Overview%20Fact%20Sheet%202013.pdf (last visited Oct. 28, 2013). DBHDD also serves “forensic consumers,” who are individuals
that the courts have found not guilty by reason of insanity or incompetent to stand
trial and placed in DBHDD’s care. See DBHDD Overview Fact Sheet, https://dbhdd.georgia.gov/sites/dbhdd.georgia.gov/files/related_files/site_page/DBHDD%20Overview%20Fact%20Sheet%202013.pdf (last visited Oct. 28, 2013). DHBDD’s services either help families continue to care
for a relative or provide home settings and care to individuals who do not live with
their families. See id.
DBHDD operates six regional state hospitals, including Rose. See DBHDD Overview Fact Sheet, https://dbhdd.georgia.gov/sites/dbhdd.georgia.gov/files/related_files/site_page/DBHDD%20Overview%20Fact%20Sheet%202013.pdf (last visited Oct. 28, 2013). Rose, however, will no longer be one of DBHDD’s Statewide
Providers after December 31, 2013. Joey, a service director at Rose, indicated Rose
will be discharging forty-nine developmentally disabled patients from its care. The
DBHDD website indicates DBHDD must transition all of these patients into community-based
settings of the individual’s choice. See DBHDD, Southwestern State Hospital Information, http://dbhdd.georgia.gov/southwestern-state-hospital-information (last visited Nov. 6, 2013). Mental health patients will be served in various facilities
but those who need more intensive care will be served in an alternate psychiatric
hospital, while forensic consumers will be transferred to another forensic facility.
See DBHDD, Community-Based Services for Individuals Living with Developmental Disabilities,
http://dbhdd.georgia.gov/dd-community-based-services (last visited Nov. 6, 2013).
James, an attorney for Rose, informed our office that Rose seeks to obtain replacement
SSNs for its developmentally disabled patients so new facilities can serve the patients.
James said the new facilities typically require new patients to have SSNs. James updated
our office that of the forty-nine developmentally disabled patients, only one of them
has a guardian who “may or may not be available to sign SS-5s” and six patients already
have their SSNs. James indicated that the remaining patients are adults whose parents
or relatives have not been involved in the patient’s lives or care, and the patients
are mentally and/or physically unable to complete, sign, and date an application for
a replacement SSN. Therefore, Rose would like to apply for replacement SSNs on behalf
of these patients.
Rose submitted to SSA an Order Granting Petition for Continued Habilitation (Order)
dated October 10, 2012, for James, the number holder (NH). The Order, issued by a
hearing examiner, indicates DBHDD, acting through Rose, petitioned for an order authorizing
the continued habilitation of NH. The Order states NH was diagnosed with a developmental
disability and was a client at Rose, Rose had determined NH needed continued habilitation,
and the hearing examiner had made an independent finding that NH’s continued habilitation
was necessary. The Order states: “'Developmentally disabled person requiring temporary
and immediate care' means a person who is developmentally disabled, and: (A) Who presents
a substantial risk of imminent harm to himself or herself or others; (B) Who is in
need of immediate care, evaluation, stabilization, or treatment for certain developmental,
medical, or behavioral needs; and (C) For whom there is no available, appropriate
community residential setting for meeting the needs of the person.” The Order also
states that an individual needing continued habilitation must receive a program of
inpatient treatment for developmental disabilities within a hospital facility setting
if certain evidence is presented showing, in part, that the individual requires twenty-four
hour training in a residential care facility. The hearing examiner authorized Rose
to retain NH for continued habilitation until September 30, 2013, unless the chief
medical officer finds that NH is no longer a person with developmental disabilities
requiring continued habilitation.
James informed our office that although the Order is only effective from October 12,
2012, through September 30, 2013, he believes Rose would have obtained a new order
prior to the Order’s expiration because no developmentally disabled person can be
placed or retained in a DBHDD hospital without a court order. James further indicated
Rose can provide similar orders for the remaining developmental disabled patients.
DISCUSSION
An individual needing an original SSN may apply for one by filing a form SS-5, “Application
for A Social Security Number Card,” or filing an application electronically during
an in-office interview, and submitting the required evidence. See Social Security
Act § 205(c)(2)(B)(ii); 20 C.F.R. §§ 422.103(b)(1), 422.107(a) (2013) [2] ; Programs Operations Manual System (POMS) RM 10205.001(A). After assigning the individual a SSN, SSA will send the individual an SSN card.
See 20 C.F.R. § 422.103(d). An individual seeking a replacement SSN must complete an
application and submit the same documentary evidence. See 20 C.F.R. §§ 422.103(e)(1), 422.107(a); POMS RM 10205.001(A). A “proper applicant” must complete the application for SSA to accept the application.
See POMS RM 10205.010; see also POMS RM 10205.025(C) (requiring SSA to return applications that are not from proper applicants).
“A proper applicant for an SSN card is a person who may file an application for an
SSN card on behalf of himself/herself or on behalf of someone physically or mentally
unable to file on his or her own behalf.” POMS RM 10205.025(A). “In some situations, there may be more than one proper applicant.” Id. An individual who is eighteen years of age or older and who is physically and mentally
capable of completing an in-person interview or reading and completing an application
for an SSN must file the application on his or her own behalf. See POMS RM
10205.025(B)(1).
However, if an individual is unable to file an application for an SSN card on his
or her own behalf, an applicant who can establish a relationship to and custody or
responsibility for the individual may file an application on behalf of the individual.
POMS RM 10205.025(B)(3). SSA has established a priority list to determine who may qualify as a proper
applicant for the individual:
(a) A court-appointed legal guardian (individual or other entity) always has priority
over any other proper applicants;
(b) A parent (natural, adoptive, or step) with custody of a child;
(c) An administrator of an individual’s (adult or child) estate;
(d) A brother, sister, grandparent, aunt, uncle, or cousin with custody of a child;
(e) A State agency (including state foster care and child protective service agencies,
State mental institutions or hospitals, or State adoption agencies) or a State-licensed
agency (including State contractors and private adoption agencies) if it has legal
custody of the individual (adult or child); or
(f) An individual who applies on behalf of another individual (adult or child) who
can establish relationship and responsibility.
Id. SSA may consider someone lower on the priority list to be a proper applicant only
if no one higher on the list exists. Id. For an applicant claiming to be a State agency with legal custody of the individual,
the applicant must provide proof of his or her own identity, proof that he or she
has the authority to act on behalf of the agency, and court custody documents that
give the State agency custody of the individual. See POMS RM 10205.050(B). “Court custody documents establish the Agency’s relationship, as well as custody
and responsibility of the Agency for the individual.” POMS RM 10205.050(B)(3).
You have asked whether Rose can qualify as a State agency with legal custody of developmentally
disabled patients at Rose based solely on the orders granting petitions for continued
habilitation such as the Order submitted regarding NH. You specifically asked us to
exclude from our analysis the one developmentally disabled patient who has a legal
guardian. You also asked us to assume the remaining developmentally disabled patients
are adults who are not currently mentally or physically able to complete and sign
their own applications for a replacement SSN, and that Rose can provide orders similar
to the Order regarding NH.
As an initial matter, we note that the Order regarding NH, or similar orders for other
patients, would appear to be insufficient to establish that NH or the other patients
are mentally or physically unable to complete and sign their own applications for
a replacement SSN. Under Georgia law regarding the habilitation of the developmentally
disabled, no developmentally disabled person who is receiving or has received services
for a developmental disability can be considered legally incompetent for any purpose
without due process of law. See Ga. Code Ann. § 37-4-100 (West 2013). Other provisions of Georgia law also indicate
a developmentally disabled person cannot be presumed to be incompetent even if he
or she is being habilitated under an order of habilitation and must be presumed to
be legally competent absent an order declaring the person legally incompetent. [3] See, e.g., Ga. Code Ann §§ 37-4-1, 37-4-101 to -110 (West 2013). Therefore, we caution SSA
against presuming the patients at Rose are physically and mentally capable of completing
an in-person interview or reading and completing an application for a SSN card based
on a designation of developmentally disabled or based on an order granting a petition
for habilitation.
However, if SSA does determine that the developmentally disabled adult patients are
not currently mentally or physically able to complete and sign their own applications
for a replacement SSN, then Rose can be considered a state agency with legal custody
based on the Order of Continued Habilitation for the following reasons. First, Rose
is a state mental hospital. Specifically, DBHDD is a state agency that the Governor
and General Assembly created. See DBHDD Overview Fact Sheet, (visited October 28, 2013), <https://dbhdd.georgia.gov/sites/dbhdd.georgia.gov/files/related_files/site_page/DBHDD%20Overview%20Fact%20Sheet%202013.pdf. DBHDD operates Rose, which is a mental health hospital and one of DBHDD’s facilities.
Id.
Second, the Order related to NH does not show Rose currently has legal custody of
NH for proper applicant purposes. The Order of Continued Habilitation here tracks
Georgia law, which provides that if a client needs continued habilitation beyond the
period in which an order has authorized a facility to retain the client, then the
facility is permitted to continue its habilitation of the client after the facility
petitions for, and obtains, a new order authorizing it to do so. See Ga. Code Ann. § 37-4-42(a) (West 2013). Georgia statute defines habilitation as “the
process by which program personnel help clients acquire and maintain those life skills
which will enable them to cope more effectively with the demands of their own persons
and of their environment and to raise the level of their physical, mental, social,
and vocational abilities.” Ga. Code Ann. § 37-4-2(8) (West 2013). If the judge grants
the petition, the judge may order the client’s continued habilitation for a period
not to exceed one year. See Ga. Code Ann. § 37-4-42(i). The statute grants DBHDD the “full authority to receive
and treat patients ordered admitted to such facilities, institutions, or programs
pursuant to any law, [and] to … exercise any power or function with respect to patients
provided by law.” Ga. Code Ann. § 37-1-21(a)(5) (West 2013). Georgia defines “Facility,”
in this context, as any state owned or state operated hospital used to diagnose, take
care of, treat, or hospitalize mentally ill patients, see Ga. Code Ann. § 37-3-7; or any state owned or state operated institution used 24
hours a day for the habilitation and residence of developmentally disabled individuals,
see Ga. Code Ann. § 37-4-2(6) (West 2013). Because Rose is a state operated mental health
hospital, which also provides habilitation and residence for its patients, it is a
“facility” and thus has the same full authority as DBHDD to exercise any power or
function with respect to patients provided by law.
The Georgia Court of Appeals has indicated in dicta that Section § 37-1-21(a)(5) gives DBHDD “custody” of the admitted patient once a
probate court initially commits the patient to a DBHDD facility. See Robbins v. Lumpkin, 370 S.E.2d 635, 637 (Ga. Ct. App. 1988). When determining a patient’s continued
habilitation, as is the case here, the hearing examiner is in effect still determining
whether DBHDD should continue to exercise its custody over the patient, and if so,
how that continued custody should be exercised and implemented. Id. To be proper custody, the judge must actually grant the petition for continued habilitation
and the order must not have expired. See Ga. Code Ann. § 37-4-42(i). Thus, if the developmentally disabled patients at Rose
have an order granting continued habilitation and it has not expired, then DBHDD acquired
legal custody to retain the patients initially and Rose still has legal custody over
the patients for as long as the order so states.
Under the Order here, however, the hearing examiner authorized Rose to retain NH for
continued habilitation only until September 30, 2013 and thus the Order has expired.
Consequently, while a current order of the type submitted for our review could establish
Rose as a state agency with legal custody, the Order here does not do so because it
is not current. James informed our office that he will provide SSA with current orders
granting continued habilitation for the developmental disabled patients.
CONCLUSION
If the developmentally disabled individuals at Rose: 1) are adults; 2) whom SSA determines
are mentally or physically unable to complete and sign their own applications for
a replacement SSN; 3) who also do not have legal guardians; and 4) who provide orders
similar to the Order granting continued habilitation (but current), then Rose would
be a state mental hospital with legal custody.
Sincerely,
Mary Ann Sloan
Regional Chief Counsel
Arthurice T. Brundidge
Assistant Regional Counsel