QUESTIONS PRESENTED
For purposes of the NGRI and SDP nonpayment provisions of Title II of the Social Security
Act (Act), you ask whether the Social Security Administration (SSA or the agency)
should classify three Louisiana inmate/resident mental health facilities as NGRI or
SDP facilities (Louisiana inmate/resident mental health facilities).[1] You also asked us to identify the type of documentation the agency needs to determine
whether the Title II nonpayment provision still applies to transferred inmates or
whether their benefits should be reinstated.
SUMMARY RESPONSE
SDP Nonpayment Provision
Louisiana does not provide for SDP confinement. Therefore, the three Louisiana inmate/resident
mental health facilities are not SDP facilities for purposes of the SDP nonpayment
provision of Title II of the Act. See 42 U.S.C. § 402(x)(1)(A)(i), (iii).
NGRI Nonpayment Provision following Commitment of an NGRI Defendant
Our research did not show that the Act, agency regulations, or Louisiana law authorizes
or identifies any Louisiana inmate/resident mental facility as an NGRI facility. Rather,
our research showed that Louisiana courts can commit an NGRI defendant to a Louisiana
inmate/resident mental facility, but the Act, agency regulations, or Louisiana law
does not designate the Louisiana inmate mental facility as an NGRI facility.
For the Act’s NGRI nonpayment provision to apply, there must be: (1) a court verdict
or finding of NGRI, and (2) a court order of confinement (for more than 30 days) in
a U.S. correctional or mental health facility at public expense based on the NGRI
verdict. See 42 U.S.C. § 402(x)(1)(A)(ii)(I), (II), (IV) (NGRI nonpayment provisions); Program
Operations Manual System (POMS) GN 02607.310. Under Louisiana Law, following a verdict of NGRI, a court can commit an NGRI defendant
to a state mental institution or to a court-approved private mental institution. See La. Code Crim. Proc. Ann. arts 650, 651, 654. Louisiana confines NGRI defendants at
public expense. See La. Code. Crim. Proc. Ann. art. 660. Therefore, SSA must suspend Title II benefits
for an NGRI defendant ordered by a Louisiana court to commitment, or confinement,
in a mental institution. In general, in terms of the documentation to support nonpayment
of benefits to an NGRI defendant, there should be a court order with a verdict of
NGRI and a court order committing the NGRI defendant to a particular state mental
health institution or a court-approved private mental health institution. See La. Code Crim. Proc. Ann. arts. 650, 651, 654. Therefore, the court commitment order
would identify the institution of the NGRI defendant’s confinement.
Reinstatement of Title II Benefits Following Discharge or Probation/Conditional Release
of a Committed NGRI Defendant
You asked about the transfer of NGRI defendants from a state mental health institution
to three Louisiana inmate/resident mental health facilities. Thus, we believe that
you are interested in knowing whether the NGRI defendant’s confinement continues in
situations where an NGRI defendant is transferred from a state mental health institution
to a Louisiana inmate/resident mental health facility. As above, we are not able to
advise whether every transfer from a state mental health institution to one of three
Louisiana inmate/resident mental health facilities is an official release such that
confinement ends, as each transfer or release of an NGRI defendant must be considered
on a case-by-case basis. A person confined to a mental institution due to a finding
of NGRI continues to be confined within the meaning of the Act until the mental institution
releases him from its care and supervision, and the institution ceases to meet his
basic living needs. See 42 U.S.C. § 402(x)(1)(B)(ii). The POMS notes that confinement ends and benefits should
be reinstated with conditional release (official release from the institution, which
no longer provides for the beneficiary’s basic living needs, but the beneficiary continues
to receive supervision or treatment); or unconditional release from an institution.
POMS GN 02607.310(B)(2)(b), GN 02607.850. Thus, SSA must reinstate benefits when the NGRI defendant is both (1) no longer
under the institution’s care and supervision (even if under a conditional release),
and (2) the institution no longer provides the NGRI defendant with their basic living
needs. POMS GN 02607.850(A).
Under Louisiana law, following initial commitment in a mental health institution,
the committing court may later enter an order discharging (conditionally or unconditionally)
the NGRI defendant, or the committing court may enter an order placing the NGRI defendant
on probation (also called conditional release under Louisiana law). See La. Code Crim. Proc. Ann. art. 657. If the court orders that the NGRI defendant be
placed on probation (conditional release), the clerk of court must provide the defendant
with a certificate setting forth the period and conditions of his probation. See La. Code Crim. Proc. Ann. art. 658. In general, a Louisiana court’s order of discharge
or order of probation (conditional release) of a committed NGRI defendant in accordance
with Louisiana law may constitute an official release from the mental health institution
such that SSA should reinstate benefits. However, SSA should carefully examine the
specific information pertaining to NGRI defendants on a case-by-case basis to determine
whether there has in fact been an official release from the court-ordered confinement
in an institution. Thus, SSA must determine: (1) whether the NGRI defendant remains
under the care and supervision of the mental health institution, and (2) whether the
institution continues to provide the NGRI defendant’s basic living needs, which means
food, clothing and shelter. See POMS GN 02607.850(A). If the answer to these two questions is affirmative, SSA should not reinstate
benefits.
In terms of what documents SSA should look for in making the determination as to whether
to reinstate benefits, the NGRI defendant is responsible for providing his official
release documents to SSA for reinstatement of benefits, and the POMS instructs that
SSA obtain very specific information. See POMS GN 02607.850(B). SSA should review the NGRI defendant’s official release documents to ensure that
the individual has been officially released from the institution, either unconditionally
or conditionally, and has not simply been transferred from one institution to another.
See id. Further, SSA should verify that the institution is no longer providing the NGRI defendant
with his basic living needs (food, clothing and shelter). See id. The official release documents should include the necessary identifying information
about the NGRI defendant; the name of the institution where the NGRI defendant had
been confined; the date and time of the release; and the signature of an official
from the institution authorizing the release. See id. For a conditional release, or probation, the documents must contain the NGRI defendant’s
conditions for release, such as the amount of supervision the inmate will receive
from the institution once released; the treatment the NGRI defendant may be required
to receive when released; and where the NGRI defendant will reside when released.
See id. Because under Louisiana law only a court can discharge or conditionally release (place
on probation) a committed NGRI defendant from confinement, we recommend that SSA obtain
the court order of discharge, or the court order of probation (conditional release)
and the court clerk’s certificate of the terms of probation (conditional release).
We are unable to know whether all Louisiana court orders of discharge or probation
(conditional release) will contain all of the necessary information that SSA needs
to determine whether to reinstate benefits. Therefore, in addition to SSA obtaining
a copy of the court order, POMS GN 02607.850(B) provides that SSA may still need to seek additional information from the NGRI
defendant or mental health institution to determine whether the individual is no longer
under the care and supervision of the institution, and whether the institution no
longer provides basic living needs to the NGRI defendant.
BACKGROUND
The field office in Baton Rouge, Louisiana (FO), requested advice as to whether three
Louisiana inmate/resident mental health facilities are NGRI or SDP facilities. FO
personnel noted that Eastern Louisiana Mental Health System (ELMHS), a state psychiatric
hospital operated by the Louisiana Department of Health, Office of Behavioral Health,[2] transfers or releases NGRI defendants,[3] whom are released but still under the jurisdiction of the criminal court, to one
of the following receiving mental health facilities: Harmony Center in Baton Rouge,
Louisiana;[4] Grace Outreach Center in New Orleans, Louisiana;[5] or Villa Feliciana in Jackson, Louisiana[6] (hereinafter collectively referred to as “Louisiana inmate/resident mental health
facilities”). It is our understanding that SSA is not paying the defendants any Social
Security benefits while they are at ELMHS, and that the nonpayment of benefits while
at ELMHS is not at issue in this legal opinion request; rather, the questions arise
when these NGRI defendants are transferred or released from ELMHS to these other Louisiana
inmate/resident mental health facilities. When ELMHS transfers the defendant to one
of those three Louisiana inmate/resident mental health facilities, a representative
of the Louisiana inmate/resident mental health facility files an application requesting
SSA to appoint the Louisiana inmate/resident mental health facility as representative
payee of the transferred defendant’s Social Security benefits. The Louisiana inmate/resident
mental health facility also has the defendant file an initial claim for benefits or
request benefit reinstatement. In support of their request for reinstatement of benefits
or initial claim for benefits once transferred to one of the three Louisiana inmate/resident
mental health facilities, the defendant often presents to SSA forms that ELMHS prepares
when transferring or releasing him to the Louisiana inmate/resident mental health
facility, but the forms are usually vague and not reliable.
To apply proper NGRI or SDP policies, the FO requested advice on whether the Louisiana
inmate/resident mental health facilities are facilities where the courts confine NGRI
or SDP defendants and to identify the type of documentation the Louisiana inmate/resident
mental health facilities or the NGRI defendant need to present to SSA when requesting
reinstatement of benefits or filing a new claim for benefits, when transferred from
ELMHS to one of the Louisiana inmate/resident mental health facilities.
DETAILED ANALYSIS
I. Federal Law: Overview of Limitation on Payments to Prisoners and Confined Persons
Under section 202(x)(1)(A) of the Act, SSA does not pay Title II benefits to a person
who is confined:
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in a jail, prison, or other penal or correctional facility for more than 30 continuous
days due to a conviction for committing a criminal offense (the prisoner nonpayment
provision);
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by court order in an institution at the public’s expense for more than 30 continuous
days in connection with a verdict or finding that they are:
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not guilty by reason of insanity (the NGRI nonpayment provision);
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incompetent to stand trial (the IST nonpayment provision); or
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sexually dangerous persons (the SDP nonpayment provision).
See 42 U.S.C. § 402(x)(1)(A); POMS GN 02607.001(A). Consistent with the specific issues raised in the legal opinion request, this
legal opinion focuses only upon the SDP and NGRI provisions as it relates to inmates
transferred from ELMHS to the three Louisiana inmate/resident mental health facilities.[7]
II. Federal Law: Title II Benefits and the SDP Nonpayment Provision
SSA does not pay Title II benefits to a person if, upon completion of the confinement
for a conviction of a criminal offense involving sexual activity, pursuant to a court
order, the individual was immediately transferred and confined in an institution at
public expense because the individual was determined to be a SDP, a sexual predator,
or a similar finding. See 42 U.S.C. § 402(x)(1)(A)(i), (iii). The POMS explains that the Act “prohibits payment
to a beneficiary who a court finds is [an SDP] or a sexual predator based on State
law.” POMS GN 002607.350(A). The POMS defines SDP as “a person with a mental abnormality
or personality disorder who is likely to engage in sexual offenses if released from
confinement.” See id. at GN 02607.001(B)(9). State laws generally have the following requirements for considering a person
to be an SDP: a conviction for a sexually violent crime, or conduct that would be
a crime; a mental abnormality or personality disorder (pedophilia, rape, etc.); and
the offender is likely to reoffend unless confined in a secure facility (mental institution
or special commitment center). See id. at GN 02607.350(A).
The POMS instructs SSA to suspend Title II benefit payments to an individual when
a court finds the individual to be an SDP based on state law and the court issues
an order confining the individual to an institution for more than 30 continuous days
at public expense immediately following the individual’s completion of his criminal
prison sentence. See POMS GN 02607.350(A)-(B). SSA will enforce the Act’s SDP nonpayment provision only in those states
that have laws expressly providing for court ordered confinement of SDPs. See id. Thus, we next consider Louisiana law to determine (1) how state law defines an SDP
and (2) whether Louisiana law expressly provides for court ordered confinement of
SDPs.
A. Louisiana Law Regarding SDP
In 2006, Louisiana enacted new laws targeting sex offenders released from prison.
See La. Rev. Stat. Ann. §§ 15:560-560.6; State v. Golston, 67 So.3d 452, 454 (La. 2011) (holding the new sex offender laws of La. Rev. Stat.
Ann. § 15:560 et seq. to be constitutional). Louisiana refers to an SDP as a “child sexual predator” or
“sexually violent predator” (hereinafter collectively referred to as “SDP”) and defines
it as an offender who the court has convicted of a sex offense and who has a mental
abnormality or anti-social personality disorder that makes him likely to engage in
predatory sexually violent offenses. La. Rev. Stat. Ann. §§ 15:541(6), (27), 15:560.1(1),
(5). If the court and a Sex Offender Assessment Panel finds an offender is an SDP,
the court must order the division of probation and parole, Department of Public Safety
and Corrections, to supervise the offender upon his release from incarceration for
the duration of his natural life. Id. at § 15:560.3(A).
Upon release from incarceration and for the duration of his natural life, the SDP
must, among other things, do the following: register as a sex offender; provide community
notification regarding his sex offender status; submit to electronic monitoring; submit
to continued supervision, either in person or through remote monitoring, of certain
internet-related activities; submit a resident plan for approval; and report to the
probation and parole officer when directed to do so. Id. at § 15:560.3(A)(1)-(14). Thus, under Louisiana law, SDPs are placed on indefinite
probation and electronic monitoring, but they are not civilly committed to other facilities
after being released from prison.
B. Whether the Three Louisiana Mental Health Facilities Are SDP Facilities
As explained above, although Louisiana law provides for probation and monitoring of
SDPs upon their release from prison, Louisiana law does not provide for civil commitment
of an SDP after the SDP is released from incarceration for a sex offense conviction.
See La. Stat. Ann. § 15:560.3(A)(1)-(14) (effects of determination of status as an SDP).
As a result, Louisiana does not have laws expressly providing for court ordered confinement
of an SDP in any SDP facilities. See POMS PR 06805.048, C. PR 07-191 Request for Opinion on Regional Sexual Predator Laws (Aug. 8, 2007)
(finding that Louisiana laws do not provide for the confinement in an institution
of a sexual predator immediately after he or she completes his or her confinement
in a jail, prison, or other penal institution or correctional facility). Therefore,
the three Louisiana inmate/resident mental health facilities at issue in this legal
opinion request are not SDP facilities for purposes of the nonpayment of Title II
benefits under the Act. See 42 U.S.C. § 402(x)(1)(A)(iii); POMS GN 02607.350(A) (“We enforce the SDP nonpayment provision only in those states that have laws
expressly providing for court ordered confinement of SDPs.”).
III. Federal Law: Title II Benefits and the NGRI Nonpayment Provision
SSA does not pay Title II benefits to a person who is, for more than a 30-day period,
confined by court order in an institution at public expense in connection with:
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a verdict or finding that the individual is guilty but insane, with respect to a criminal
offense;
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a verdict or finding that the individual is not guilty of such an offense by reason
of insanity; or
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a similar verdict or finding with respect to such an offense based on similar factors,
such as a mental disease, a mental defect, or mental incompetence.
See 42 U.S.C. § 402(x)(1)(A)(ii)(I), (II), (IV) (NGRI provisions). The POMS instructs
that a court declares a defendant NGRI when it: (1) finds a defendant guilty but insane
with respect to a criminal offense; (2) finds a defendant not guilty of a criminal
offense by reason of insanity; or (3) issues a similar verdict or finding with respect
to a criminal offense based on similar factors, such as mental disease, mental defect,
or mental incompetence.” POMS GN 02607.310.[8] SSA suspends Title II benefit payments to an individual when: (1) a court issues
a verdict of NGRI; (2) an institution takes custody of the beneficiary because of
the NGRI verdict; and (3) the beneficiary remains confined in the institution for
more than 30 continuous days based on the NGRI verdict. See 42 U.S.C. § 402(x)(1)(A)(ii)(I), (II), (IV); POMS GN 02607.310(B)(1)(b).
It is our understanding that the issues of this legal opinion primarily concern when
an NGRI defendant’s confinement ends such that benefits can be reinstated. Confinement
means an individual is in the custody of a United States correctional or mental health
institution, or facility. POMS GN 02607.001(B)(1). A person confined in an institution due to a finding of NGRI continues to
be confined within the meaning of the Act until the mental institution releases him
from its care and supervision, and the institution ceases to meet his basic living
needs.[9] See 42 U.S.C. § 402(x)(1)(B)(ii). Thus, SSA must reinstate benefits when the NGRI defendant
is both (1) no longer under the institution’s care and supervision, and (2) the institution
no longer provides the NGRI defendant with their basic living needs. POMS GN 02607.850(A). As to the basic living needs, the POMS explains that this “means the institution
provides the inmate with food, clothing, and shelter.” Id. As to the care and supervision criteria, the POMS explains that “[c]are and supervision
means that the individual requires continual supervision and monitoring by the institution.”
The POMS further explains that confinement ends and benefits should be reinstated
with unconditional release from an institution (set free completely), as well as with
conditional release from confinement in an institution, which is considered an official
release from the institution when the institution no longer provides for the beneficiary’s
basic living needs, but the beneficiary continues to receive some degree of supervision
or treatment as a condition of the release. POMS GN 02607.310(B)(2)(b), GN 02607.850(A)(1). The POMS notes that transferring the defendant from one facility to another
does not qualify as an official release from the institution. POMS GN 02607.850(A)(1)(c). Finally, the POMS sets forth specific procedures for processing reinstatement
of benefits and explains in detail the type of official release documents that the
agency should obtain, which we address in the final section of this opinion. See POMS GN 02607.850(B).
In summary, for the Act’s NGRI nonpayment provision to apply, there must be: (1) a
court verdict or finding of NGRI, and (2) a court order of confinement (for more than
30 days) in a U.S. correctional or mental health facility at public expense based
on the NGRI verdict. See 42 U.S.C. § 402(x)(1)(A)(ii)(I), (II), (IV); POMS GN 02607.310. When the institution releases the defendant from confinement, meaning the defendant
is no longer under the care and supervision of the institution where he had been confined,
and the institution no longer provides him with his basic living needs, SSA should
reinstate the NGRI defendant’s benefits. POMS GN 02607.850. We next consider Louisiana law relevant to the NGRI provisions.
A. Louisiana Law Regarding NGRI Verdict and Initial Commitment of an NGRI Defendant
to a Mental Institution
A defendant is presumed under the law to be sane and responsible for his or her conduct.
La. Rev. Stat. Ann. § 15:432. Under Louisiana law, a defendant may raise a defense
of insanity at the time of the offense and to do so, must enter a combined plea of
not guilty and NGRI. La. Code Crim. Proc. Ann. art. 650; see also La. Code Crim. Proc. Ann. art. 651 (if a defendant enters a plea of only “not guilty,”
evidence of insanity or a mental defect at the time of the offense is not admissible;
the defendant must enter a plea of not guilty and NGRI to present the defense of insanity).
The defendant has the burden of proving his insanity by a preponderance of the evidence.
La. Code Crim. Proc. Ann. art. 652. A court verdict of NGRI is an acquittal on the
ground of insanity. See id. at art. 654.
When a court finds a defendant NGRI in a capital case,[10] the court must commit the defendant to a proper state mental institution or to a
court-approved private mental institution for custody, care, and treatment. La. Code
Crim. Proc. Ann. art. 654 (legal effect of acquittal on ground of insanity and commitment);
see also State v. Lott, 325 So.2d 576, 578-579 (La. 1976) (“In a capital case, the judge has no discretion;
if the defendant is found not guilty by reason of insanity, he must be committed to
a mental institution.”).
In a non-capital case, however, the court holds a hearing to determine whether commitment
is necessary, or whether the NGRI defendant can be discharged or released on probation.
See La. Code Crim. Proc. Ann. art. 654. When the court finds a defendant NGRI, the court
must remand the defendant to the parish jail or to a court-approved private mental
institution and must promptly hold a contradictory hearing to determine whether the
court can discharge the defendant or release the defendant on probation, without danger
to others or himself, or whether to commit the defendant. Id.; see also La. Rev. Stat. Ann. § 28:59(A) (“Any person acquitted of a crime or misdemeanor by
reason of insanity or mental defect may be committed to the proper institution in
accordance with Code of Criminal Procedure Arts. 654 et seq.”); Jackson v. Foti, 670 F.2d 516, 517, 519-520 (5th Cir. 1982) (noting that “[t]he controlling authority
for the commitment of insanity acquittees is article 654 of the Louisiana Code of
Criminal Procedure, and holding that “[w]e conclude that the due process clause entitles
insanity acquittees to a hearing before commitment and that the equal protection clause
requires a state to afford insanity acquittees substantially the same protections,
subject to certain qualifications, as are granted to persons under civil commitment
statutes.”). After the hearing, if the court determines that it can discharge the
defendant or release the defendant on probation, without danger to others or to himself,
the court must order his discharge or his release on probation, subject to specified
conditions for a fixed or an indeterminate period. La. Code Crim. Proc. Ann. art.
654. If instead, the court determines it cannot release the defendant without danger
to others or to himself, the court must order the defendant committed to a proper
state mental institution or to a court-approved private mental institution for custody,
care, and treatment. Id. A mental institution shall admit a defendant found NGRI pursuant to article 654 only
if the court provides the following information: the defendant’s commitment order
specifying NGRI; a copy of the defendant’s criminal history record; a police report
concerning the charged offense; victim and witness statements, if any; and the name,
address, and telephone number of the district attorney who prosecuted the defendant.
Id. at art. 654.1. The State bears the institutional costs of criminal commitment for
the custody, care, and treatment of the NGRI defendant. Id. at art. 660.
Whether the court commits or releases the person on probation, it must at all times
issue an order that includes written findings of fact and conclusions of law. Id. at arts. 654, 657. Thus, when an NGRI defendant is committed to a mental institution
following a verdict of NGRI, there is a court commitment order reflecting this commitment
and naming the specific institution where the person is to be confined, and the court
provides this commitment order to the mental institution.
If the court orders the NGRI defendant’s commitment to a state mental institution
or to a court-approved private mental institution, state law sets forth specific procedures
for subsequent application for discharge or release on probation of a NGRI defendant
from the mental institution, or for continued commitment. See id. at arts. 655-658. It is our understanding that the legal opinion request is concerned
primarily with subsequent releases or transfers of NGRI defendants following the initial
commitment to a mental health institution (here, the ELMHS). Thus, we examine these
procedures next.
B. Louisiana Law Regarding the Discharge or Release on Probation (Conditional Release)
of a Committed NGRI Defendant
The committed NGRI defendant can himself apply for discharge or release on probation,
and the mental institution may on its own recommend discharge (conditionally or unconditionally)
or release on probation (also called conditional release). La. Code Crim. Proc. Ann.
art. 655(A), (B). Under Louisiana law, only the committing court can discharge or
release on probation an NGRI defendant from confinement in the mental health institution.
The committing court makes the final determination on whether discharge or probation
is appropriate based on reports and recommendations from the mental institution and
a review panel. See id. at arts. 655, 656, 657. The court considers the reports filed pursuant to articles
655 and 656 and may either continue the commitment or hold a contradictory hearing
to determine whether the committed person is no longer mentally ill and can be discharged,
or can be released on probation, without a danger to others or to himself. Id. at art. 657. At the hearing, it is the State’s burden to seek the continuance of
the confinement by proving by clear and convincing evidence that the committed person
is currently both mentally ill and dangerous. Id. After the hearing, the court enters a judgment and order with written findings of
fact and conclusions of law. Id. The court may order the committed person (1) discharged, (2) released on probation
subject to specified conditions for a fixed or indeterminate period (also called conditional
release),[11] or (3) recommitted to the state mental institution. Id. Thus, there should be a court order reflecting the discharge, release on probation
(conditional release), or recommitment of an NGRI defendant following his initial
confinement.
When the committed person is released on probation (conditional release), the clerk
of court shall provide him with a certificate setting forth the period and conditions
of his probation. Id. at art. 658(A). Thus, SSA should obtain a written certificate setting for the terms
of the conditional release/probation. The probationer remains under the division of
probation and parole’s supervision, and the Department of Health and Hospitals (department)
shall remain responsible for the community treatment and monitoring of persons placed
on outpatient status. Id. at art. 658(B). The department may provide for the outpatient services directly or
through contracts with private providers or local jurisdictions. Id. The department must designate a conditional release program coordinator to monitor
the aftercare, progress, and compliance with the court order. Id. If a person violates the conditions of the probated release or was about to violate
the conditions of probation, the court is notified, and the court may revoke probation
and recommit to a state institution, reprimand and warn the probationer, order that
supervision be intensified, or modify or add conditions to the probation. Id. at art. 658(C).
C. Whether the NGRI Defendants Transferred/Released from ELMHS to the Three Louisiana
Inmate/Resident Mental Health Facilities Remain in Confinement at the Public’s Expense
It is our understanding that the primary focus of this legal opinion request focuses
on the transfer or release of NGRI defendants from ELMHS to the three Louisiana inmate/resident
mental health facilities. We are unable to answer your broad question of whether these
three Louisiana inmate/resident mental health facilities are NGRI facilities.[12] In order to know whether an NGRI defendant’s confinement continues when transferred
or released from ELMHS to one of these three Louisiana inmate/resident mental health
facilities, SSA must determine whether this is an official release from confinement
or whether this is merely a transfer from one facility to another as part of the court-ordered
confinement. See POMS GN 02607.850(A). The issue of whether a particular NGRI defendant in Louisiana remains under confinement
or has been officially released must be addressed on a case-by-case basis by examining
the specifics of the NGRI defendant’s release. As detailed above, under Louisiana
law, only a court can officially release a committed NGRI defendant from confinement,
and there are two ways in which a court can officially release a committed NGRI defendant
from confinement: discharge or conditional release (probation).
As also explained, a Louisiana court can enter an order discharging a committed NGRI
defendant from confinement, and the discharge can be conditional or unconditional.
See La. Code Crim. Proc. Ann. arts. 655, 657. We believe that a court’s discharge order
constitutes an official release for purposes of reinstating benefits, but that SSA
should carefully examine the documents with regard to the discharge to make sure that
the institution no longer provides care and supervision and basic living needs to
the NGRI defendant. See POMS GN 02607.850(A).
Also, a Louisiana court can enter an order placing an NGRI defendant on conditional
release (probation). See La. Code Crim. Proc. Ann. arts. 655, 657, 658. We believe that this may constitute
an official release for purposes of reinstating benefits, but that SSA should carefully
examine the documents with regard to the terms of probation and make sure that the
release in question is a conditional release (placement on probation) under Louisiana
law and not merely a transfer to another facility as part of the court-ordered commitment
of the NGRI defendant. Additionally, SSA must make sure that with the conditional
release (placement on probation), the institution no longer provides the basic living
needs of food, clothing, and shelter. See POMS GN 02607.850(A).
D. Documenting the Official Release of the Committed NGRI Defendant from Confinement
in a Mental Health Institution
You provided some document samples NGRI defendants or Louisiana inmate/resident mental
health facility representatives give to SSA in support of reinstatement of benefits
to an NGRI defendant or to support a new claim by an NGRI defendant. You believe such
documents are too vague and result in inconsistent determinations by the agency, and
we agree. The sample documents provided are too vague to determine whether the individual
is an NGRI defendant committed by court to a Louisiana inmate/resident mental health
institution; whether the committed NGRI defendant is no longer under the institution’s
care and supervision; and whether the institution no longer provides the basic living
needs. See POMS GN 02607.850(A). The POMS instructs that SSA needs the “official release documents” and that the
NGRI defendant is responsible for providing his release documents to SSA for reinstatement
of benefits. See POMS GN 02607.850(B). The POMS requires that SSA obtain very specific information from the NGRI defendant
or the mental health institution to be certain that the institution has officially
released the NGRI defendant. See POMS GN 02607.850(B). The POMS explain that the official release documents must contain specific information
showing: (1) that the NGRI defendant was committed to the institution following a
verdict of NGRI and that a committing court has now “officially released” the NGRI
defendant from confinement either by discharge or conditional release (probation)
from the institution; (2) if placed on probation (or conditional release), the specific
terms of the probation; and, (3) that the institution no longer provides the NGRI
defendant with food, clothing, and shelter (meets his basic living needs) following
this discharge or conditional release. See POMS GN 02607.850(B)(1)(a). Further, the POMS instructs that the documents must: (1) clearly identify
the NGRI defendant so that SSA can confirm that it is the same person who was committed
following an NGRI verdict; (2) clearly identify the institution where the NGRI defendant
was confined and now discharged or conditionally released on probation; (3) the date
and time of the discharge or the conditional release on probation; (4) the signature
of an official from the institution authorizing the discharge or conditional release
on probation; and, (5) if placed on conditional release, documents must identify the
conditions for release, such as the amount of supervision the defendant will receive
from the institution once released, the type of treatment required when released,
and where the defendant will reside once released. See POMS GN 02607.850(B)(b). The sample documents you gave us with this legal opinion request do not provide
all of this information.
As explained above, under Louisiana law, only a court can discharge or conditionally
release a committed NGRI defendant from confinement to a Louisiana inmate/resident
mental health institution. Therefore, the official release documents of a committed
NGRI defendant would be the Louisiana committing court’s order of discharge or release
on probation (conditional release). If released on probation, there will also be the
Louisiana court clerk’s certificate setting forth the specific terms of the probation.
The institution should have the controlling court documents in its possession in order
to process the discharge or conditional release of the defendant from the court-ordered
confinement. Therefore, we recommend that SSA request these official release documents.
As stated in the prior section, we believe that these court documents should allow
SSA to determine if the NGRI defendant has been officially released, such that the
institution no longer provides the defendant’s care and supervision and basic living
needs. See POMS GN 02607.850. However, we are unable to know whether all Louisiana court orders of discharge or
probation (conditional release) will contain the necessary information that SSA needs
to determine whether to reinstate benefits, Therefore, in addition to the court orders
and in accordance with POMS GN 02607.850(B), SSA may still need to seek additional information from the NGRI defendant or
mental health institution to determine whether the individual is no longer under the
care and supervision of the institution, and whether the institution no longer provides
basic living needs to the NGRI defendant. If such court documents are not provided
and SSA is unable to obtain the documents, other official release documents the NGRI
defendant or mental institution provides must specify the information POMS GN 002607.850
requires for SSA to determine if the NGRI defendant has been officially released such
that the institution no longer provides the defendant’s care and supervision and basic
living needs. If the NGRI defendant or mental institution provide the information
showing that the court officially released the defendant and that the mental institution
no longer provides for the defendant’s care, supervision, and basic living needs,
SSA must reinstate benefits.
CONCLUSION
Louisiana does not provide for SDP confinement. Therefore, the three Louisiana inmate/resident
mental health facilities at issue in your legal opinion request are not SDP facilities
for purposes of the SDP nonpayment provision of Title II of the Act. See 42 U.S.C. § 402(x)(1)(A)(i), (iii). As to the NGRI nonpayment provision of Title
II of the Act, we are not able to advise in general terms whether these three Louisiana
inmate/resident mental health facilities are facilities the court orders an NGRI defendant
be confined or whether every transfer from ELMHS to these three Louisiana inmate/resident
mental health facilities is an official release such that confinement ends, as each
transfer or release of an NGRI defendant must be considered on a case-by-case basis.
A person confined to a mental institution due to a finding of NGRI continues to be
confined within the Act’s meaning until the mental institution releases him from its
care and supervision, and the institution ceases to meet his basic living needs. See 42 U.S.C. § 402(x)(1)(B)(ii). The POMS notes that confinement ends and benefits should
be reinstated with conditional release (official release from the institution, which
no longer provides for the beneficiary’s basic living needs, but the beneficiary continues
to receive supervision or treatment); or unconditional release from an institution.
POMS GN 02607.310(B)(2)(b), GN 02607.850. As detailed above, under Louisiana law, only a court can officially release a committed
NGRI defendant from confinement for purposes of reinstatement of benefits in one of
two ways: discharge or conditional release (probation). We recommend that SSA obtain
the court’s order of discharge or order of conditional release and the court clerk’s
certificate of conditional release as the official release documents. Also, SSA may
need to obtain any additional information that POMS GN 02607.850 requires before reinstating benefits.
Traci B. Davis
Acting Regional Chief Counsel
By: Ruben Montemayor
Assistant Regional Counsel