This precedent provides information on the effect of furloughs on the payment of benefits to prisoners entitled to Title II and Title XVI benefits in several states governed by the Chicago region. It also explains what documentation is necessary to allow payment when a beneficiary is placed on furlough. Finally, the precedent concludes that, in most instances, if the other requirements for suspension are met, a prisoner’s Social Security benefits can be suspended despite the fact that the individual has been granted and/or released on furlough.

QUESTION PRESENTED

You requested a legal opinion regarding the effect of furloughs on the payment of benefits to prisoners entitled to Title II and Title XVI benefits in Region V states. You indicated that differing guidance has been provided to SSA field offices, raising concern about equal treatment of cases. Also, you would like to know the extent of documentation necessary if payment is to be made when a prisoner is released on furlough. For the reasons discussed below, we conclude that, with limited exceptions, furloughs generally do not affect a prisoner’s status as “confined” or as “a resident of a public institution” for purposes of suspension of benefits to prisoners under Title II and Title XVI, respectively. Thus, if the other requirements for suspension are met, a prisoner’s Social Security benefits can be suspended despite the fact that the individual has been granted and/or released on furlough.

DISCUSSION

I. Title II Rules Governing Payment of Benefits to Prisoners

The Ticket to Work and Work Incentives Act of 1999 amended section 202(x) of the Social Security Act (Act) to prohibit the payment of Title II benefits where an individual is convicted of a criminal offense and is confined in a penal institution for more than 30 continuous days. ^[1] See Ticket to Work and Work Incentives Improvement Act of 1999, Pub. L. No. 106-170, § 402(b), 113 Stat. 1860, 1907 (1999) (effective April 1, 2000). Section 202(x) of the Act, as amended, provides in pertinent part:

(1)(A) Notwithstanding any other provision of this subchapter, no monthly benefits shall be paid under this section or under section 423 of this title to any individual for any month ending with or during or beginning with or during a period of more than 30 days throughout all of which such individual--

(i) is confined in a jail, prison, or other penal institution or correctional facility pursuant to his conviction of a criminal offense,

(B)(i) For purposes of clause (i) of subparagraph (A), an individual shall not be considered confined in an institution comprising a jail, prison, or other penal institution or correctional facility during any month throughout which such individual is residing outside such institution at no expense (other than the cost of monitoring) to such institution or the penal system or to any agency to which the penal system has transferred jurisdiction over the individual.

The purpose of the prisoner nonpayment provision is to conserve scarce Social Security resources where a prisoner’s basic needs are being met by the prison at public expense. See, e.g., Davel v. Sullivan, 902 F.2d 559, 562 (7th Cir. 1990) (citing Sen. Rep. No. 987, 96th Cong., 2d Sess. 7-9 (1980)); Davis v. Bowen, 825 F.2d 799, 801 (4th Cir. 1987).

SSA has defined “confinement” broadly. The regulations ^[2] provide that confinement in a jail, prison, or other penal institution or correctional facility continues as long as the individual is under a sentence of confinement and has not been released due to parole or pardon. See 20 C.F.R. §§ 404.468(c), 404.1506(d); see also POMS DI 23501.001A.3, GN 02607.001B.2 (defining confinement as “when an individual resides in a correctional or mental health institution”), GN 02607.160A.3 (confinement ends with end of sentence, pardon, or parole); SSR 83-21. Moreover, an individual is considered confined even if he is temporarily or intermittently outside of the facility (e.g., work release program, school attendance, hospitalization, or escape). See 20 C.F.R. §§ 404.468(c), 404.1506(d); see also 49 Fed. Reg. 48181, 48182; 48 Fed. Reg. 5711, 5714; POMS GN 02607.160A.3, GN 02607.200C, DI 23501.001A.3. The controlling factor is not whether the individual is physically confined in the facility, but whether the individual, though perhaps outside the facility, is still under a sentence of confinement. See SSR 83-21 (as long as there has been no action by court or other authority to end sentence of confinement, person is still considered confined, even if, for example, he escapes or is released to his home pending reassignment to hospital); POMS GN 02607.160A.3 (individual is confined if he is in custody of a U.S. correctional facility).

There are some exceptions to the general rule that confinement continues despite temporary absences from the prison. First, an individual is not considered confined if he resides outside a penal institution throughout a month at no expense (other than the cost of monitoring) to the institution or to the penal agency or to any agency to which the institution has transferred jurisdiction over the individual. ^[3] See Section 202(x)(1)(B)(i) of the Act; see also POMS GN 02607.160B.2. Second, the POMS states that benefits should not be suspended for individuals who are placed in home confinement, as they normally reside outside the penal institution at no expense (other than the cost of monitoring) to the institution. See POMS GN 02607.200C. Third, benefits should not be suspended for individuals who participate in a pre-release or community-based early release program (e.g., halfway house) if: 1) they reside outside the penal institution at no expense (other than the cost of monitoring) to the institution, and 2) they pay for their own basic living needs (they must not use any public funds to help support their basic living needs). See id.

Similar to Title II benefits, SSA will suspend an individual’s Title XVI benefits if such individual is an inmate ^[4] of a public institution (which includes a penal institution) throughout a month. A criminal conviction or court order is not required. Section 1611(e)(1)(A) of the Act provides:

[N]o person shall be an eligible individual or eligible spouse for purposes of this subchapter with respect to any month if throughout such month he is an inmate of a public institution.

See also 20 C.F.R. §§ 416.211(a)(1), 416.1325(a); POMS SI 00520.009A (prison or jail is a public institution), SI 02310.070C.1.

The regulations define “resident of a public institution” as a “person who can receive substantially all of his or her food and shelter while living in a public institution.” 20 C.F.R. § 416.201; see also POMS SI 00520.001B.5; SI 02310.070A.2. “Throughout a month” is defined as residing in an institution as of the beginning of a month and staying the entire month. See 20 C.F.R. § 416.211(a)(2); see also POMS SI 00520.001B.6, SI 02310.070A.3. The regulations also state that an individual remains a resident of a public institution if he is “temporarily absent for a period of not more than 14 consecutive days.” ^[5] 20 C.F.R. § 416.211(a)(2). The POMS further states that ineligibility due to residence in a public institution continues during periods of authorized absence from a penal institution (e.g., seasonal farm work, boot camp, work release program, stay in a hospital or nursing home). See POMS SI 00520.009D.1, SI 02310.070C.1.a.

The 14-day temporary absence rule promulgated in the regulations could be read as potentially inconsistent with the regulation defining a resident of a public institution as one who “can receive” substantially all of his food and shelter at the institution, since prisons generally do not provide food and shelter to a prisoner during a furlough. However, a prisoner who has been granted a furlough has the option to remain in the prison, where food and shelter would be provided to him. A prisoner’s decision to accept a furlough does not change the fact that he could receive food and shelter at the prison, regardless of whether he actually does so. See POMS SI 00520.001B.5 (it is immaterial whether the resident actually receives food or shelter at the institution, as long as he could), SI 02310.070A.2 (same). From this perspective, the 14-day temporary absence rule in 20 C.F.R. § 416.211(a)(2) can be read consistently with the definition of a resident of a public institution in § 416.201. See Florez v. Callahan, 156 F.3d 438, 446 (2d Cir. 1998) (holding that child was resident of a public institution (hospital) under § 416.201 even though he spent weekends with his stepfather, who provided his food and shelter on the weekends).

Thus, SSA has defined “resident of a public institution” broadly. Indeed, for absences from prison of up to 14 consecutive days, the regulations are clear that an individual will still be considered a “resident” for purposes of meeting the “throughout a month” requirement. The agency has not yet addressed in the final regulations the effect of absences greater than 14 consecutive days on the suspension of benefits to prisoners, although it has done so in the POMS. ^[6] Inasmuch as your inquiry did not concern any prisoner furloughs exceeding 14 consecutive days, this opinion does not address the effect of absences greater than 14 consecutive days. We recommend that the agency consider addressing the inconsistency between the 14-day temporary absence rule in the regulations and the POMS provision which enlarges this rule for prisoners.

As with Title II, the SSI rules for suspending benefits to prisoners do not apply in certain instances. Specifically, the rules do not apply if the institution is private, not public. For example, the POMS states that benefits should not be suspended when an incarcerated individual is placed in home confinement. When the individual is confined in a private home and the prison or penal authorities do not provide his food and shelter, the agency does not consider the individual to meet the definition of “resident of a public institution” in 20 C.F.R. § 416.201. See POMS SI 00520.009B.2 (a private home is not an institution), C.5, SI 02310.070C.2. The POMS also states that benefits should not be suspended if the individual is placed in a privately-owned halfway house that is not acting as an agent of the penal authorities. However, if the privately-owned halfway house is acting as an agent of the penal authorities (as is often the case), the individual is not eligible for SSI. See POMS SI 00520.001C.2 (policy on public vs. private institutions), SI 00520.009B.3, C.3, F (example 2).

III. How Furloughs Affect the Suspension of Benefits to Prisoners in Region V States

Although it comes in many forms, in general a furlough is defined as “[a] brief release from prison.” Black’s Law Dictionary (9th ed. 2009). While not all use the term “furlough,” all six states in Region V statutorily authorize a temporary leave of absence from a correctional facility for a designated period of time and purpose. See, e.g., Ind. Code § 11-10-9-2; Mich. Comp. Laws § 791.265a; 730 Ill. Comp. Stat. 5/3-1-2(j), 5/3-11-1; Ohio Rev. Code § 2967.27; Minn. Stat. §§ 244.07, 244.195; Wis. Stat. § 303.068.

Based on our review of the law, we conclude that, in most cases, a prisoner is considered “confined” (Title II) or “a resident of a public institution” (Title XVI) even if he is granted and/or released on a furlough, for purposes of suspension of benefits to prisoners. The Act, regulations, and POMS do not explicitly address furloughs. However, as discussed above, SSA has defined “confinement” and “resident of a public institution” broadly, stating that “confinement” and “residence” continue even during periods of absence from the facility. The regulations and POMS mention work release, halfway houses, hospitalization, and school attendance as examples of absences that do not affect “confinement” and “residence.”

Like these examples, we believe that a furlough generally fits within the broad definition of “confinement” for Title II, because an individual who is released on furlough is still under a sentence of confinement, remains in the constructive custody of the correctional facility, and is not released due to parole, pardon, or the end of his sentence. Likewise, we believe that a furlough generally fits within the broad definition of “resident of a public institution” for Title XVI. At a minimum, the agency permits an individual to be physically absent from a prison for up to 14 consecutive days, and still remain a resident of a public institution. Also, a furlough is an authorized absence, and an individual remains ineligible based on residence in a public institution during periods of authorized absences from a penal institution. We believe that our view on prisoner furloughs is consistent with the Act, regulations, and POMS, as well as Congressional intent. ^[7]

 

In certain instances, however, there are exceptions that may apply, as outlined below.

1. 1. 

   Prisoner furloughs of certain durations:

   1. a. 

      Title II: The individual is not considered “confined” if the furlough lasts throughout a month (i.e., the entire period from the first day of a month through the last day of the month) and there is no expense (other than the cost of monitoring) to the institution or penal agency or any agency to which the institution has transferred jurisdiction over the individual.

   2. b. 

      Title XVI: The regulations do not address the effect of absences beyond 14 consecutive days, but the POMS explains that a prisoner may be absent for more than 14 consecutive days and still be considered a resident of a public institution. We recommend that the agency address this inconsistency.

2. 2. 

   Home confinement:

   1. a. 

      Title II: Benefits should not be suspended for individuals who are placed in home confinement, as they normally reside outside the penal institution at no expense (other than the cost of monitoring) to the institution.

   2. b. 

      Title XVI: Benefits should not be suspended when an individual is sentenced to home confinement. The individual does not meet the definition of a “resident of a public institution” when he is confined in a private home and the prison or penal authorities do not provide his food and shelter.

3. 3. 

   Pre-release or community-based early release program (e.g., halfway house):

   1. a. 

      Title II: Benefits should not be suspended for individuals who participate in such programs if: 1) they reside outside the penal institution at no expense (other than the cost of monitoring) to the institution, and 2) they pay for their own basic living needs (they must not use any public funds to help support their basic living needs).

Title XVI: Benefits should not be suspended if the individual is placed in a privately-owned halfway house that is not acting as an agent of the penal authorities.

You indicated in your January 25, 1999 memorandum that SSA plans to increase its efforts to obtain information on individuals confined in juvenile detention centers in order to correctly suspend title XVI payments to residents of public institutions and to identify the need for new representative payees. Toward that end, you requested a review of state laws to determine whether state laws would allow the release of this information to SSA. Our research revealed some provisions in each state that could be interpreted to allow disclosure to SSA of information regarding juvenile detainees.

DISCUSSION

Illinois

In Illinois, the Department of Corrections maintains a master record file on each person (including juvenile delinquents) committed to it. See 730 Ill. Stat. Ann. 5/3-5-1(a) (West 1997); see also 730 Ill. Stat. Ann. 5/3-1-2(b)-(c) (West 1997) (defining commitment and committed person to include those who are in the custody of the department based on delinquency). Illinois law provides that this file "shall be confidential and access shall be limited to authorized personnel of the Department [of Corrections]." 730 Ill. Stat. Ann. 5/3-5-1(b). More specific provisions regarding juveniles held in secure residential facilities state that "[a]ll records regarding youth and all facts learned about youth and their relatives must be kept confidential both by the youth care facility and by the Department." 730 Ill. Stat. Ann. 175/45-115(a) (West 1997). However, the general provisions also provide that "[p]ersonnel of other correctional, welfare or law enforcement agencies may have access to files under rules and regulations of the Department." 730 Ill. Stat. Ann. 5/3-5-1(b) (West 1997); see also Ill. Admin. Code tit. 20, § 107.320(b)(1) (1999). The Department of Corrections has interpreted this provision to apply to the records of juveniles, as well. See Ill. Admin. Code tit. 20, § 107.320(b)(1).

In the regulations, the Department of Corrections defines "other correctional, welfare and law enforcement agencies" to include "[a]gencies designated in writing from time to time by the Director or the Deputy Director of the Juvenile Division of the Illinois Department of Corrections subject to Section 1-7 of the Juvenile Court Act of 1987 [705 ILCS 405/1-7]." Ill. Admin. Code tit. 20, § 107.320(a)(10) (1999) (emphasis added).

It is not entirely clear to us whether SSA would be considered a welfare agency under that regulation. The regulation includes the limiting clause "subject to Section 1-7 of the Juvenile Court Act of 1987 [705 ILCS 405/1-7]." Ill. Admin. Code tit. 20, § 107.320(a)(10) (1999). It is unclear whether this phrase limits the type of information that may be given out or the type of agency to which the information may be given.

705 Ill. Stat. Ann. 405/1-7 (West Supp. 1998) (referred to as 705 ILCS 405/1-7 in the regulation) discusses the confidentiality of law enforcement records and specifies those to whom such records may be disclosed. SSA is neither named as a permissible recipient, nor does SSA seem analogous to those designated recipients. The statute, therefore, would not appear to allow disclosure of law enforcement records to SSA. However, the regulation describing agencies to whom the Department of Corrections may release records may intend only that the Department of Corrections may release law enforcement records in its possession only as permitted by 705 Ill. Stat. Ann. 405/1-7. If this is what the regulation means, nothing would prevent the Department of Corrections from agreeing to release other information to SSA that was not contained in law enforcement records.

It is also possible that the regulations intend to limit disclosure of any records to agencies that are "subject to" 705 Ill. Stat. Ann. 405/1-7. Under this interpretation, the Department of Corrections could not disclose any information to SSA, since SSA is not an agency entitled to information under that statute. Even if the Department of Corrections adopts this interpretation of the regulation, however, we do not see anything in the law or regulations that would prevent the Department from amending the regulations to allow limited disclosure of information to SSA regarding juvenile detainees.

Indiana:

In Indiana, delinquent offenders are committed to the Department of Corrections. See Ind. Code Ann. § 11-10-2-2(1) (West 1982). Indiana law provides that the Department of Corrections "may" classify as confidential personal information regarding a committed person's medical, psychiatric, or psychological data; information relating to a pending investigation of criminal activity or misconduct; information that could result in harm to a person; sources of information obtained only upon a promise of confidentiality; and information required by law or promulgated rule to be maintained as confidential. Ind. Code Ann. § 11-8-5-2(a) (West 1982). The information SSA seeks would not appear to constitute such confidential information. But in any event, the law provides that even personal and confidential information shall be disclosed to another agency when the information is requested for purposes authorized by law. Ind. Stat. Ann. §§ 11-8-5-2(b)(3); 4-1-6-2(m) (West 1991). Indiana law specifically authorizes the Department of Corrections to require a committed offender to provide the offender's Social Security number for purposes of matching data with SSA to determine benefit eligibility. Ind. Stat. Ann. § 4-1-8-1(d) (West Supp. 1998). And Indiana law defines a committed offender to include a person adjudged delinquent by a juvenile court. Ind. Stat. Ann. § 11-8-1-9(2) (West 1982). SSA should be able to obtain information regarding juveniles held in detention centers in Indiana.

Michigan:

In Michigan, when a probate court commits a juvenile to a public institution or agency, "the court shall name the superintendent of the institution to which the juvenile is committed as a special guardian to receive benefits due the juvenile from the government of the United States, and the benefits shall be used to the extent necessary to pay for the portions of the cost of care in the institution that the parent or parents are found unable to pay." Mich. Comp. Laws Ann. § 712A.18(1)(e) (West Supp. 1998-99). Since superintendents of state institutions have a statutory obligation to obtain all federal benefits due juvenile detainees, the superintendents should be held responsible for coordinating with SSA to ensure that benefits are properly paid, and paid (if due) to the proper representative payee. Therefore, this statute should provide a basis for an agreement with superintendents in the State of Minnesota to provide information regarding juvenile delinquents held in state institutions.

Minnesota:

In Minnesota, juvenile delinquents who will be placed in detention centers are committed to the Department of Corrections. See Minn. Stat. Ann. § 242.19 (West Supp. 1999). Under Minnesota law, "[t]he commissioner of corrections may authorize the chief executive officer of any facility under the commissioner's control to release to . . . specifically designated interested persons or agencies any information regarding any person, inmate, or convict thereat, if, in the opinion of the commissioner, it will be for the benefit of the person, inmate or convict." Minn. Stat. Ann. § 241.06 (West Supp. 1999). This provision would appear to allow the Commissioner of Corrections to authorize release of information to SSA regarding juvenile delinquents committed to state institutions, assuming that the State would consider it to be in the best interest of the juvenile to correctly determine eligibility for Social Security benefits and determine the appropriate representative payee.

In addition, Minnesota has very liberal disclosure laws that establish a presumption that government data are public and accessible to the public for inspection and copying, absent a federal or state law classifying the data as not public. Minn. Stat. Ann. § 13.01 (West 1997). The law specifically recognizes that corrections and detention data (which includes all data on individuals created, collected, used or maintained because of confinement in any correctional or detention facility) is private or confidential only to the extent that it would disclose medical, psychological, or financial information, or personal information not related to the individual's lawful confinement or detainment, or endanger an individual's life, endanger the effectiveness of an investigation, identify a confidential informant, or endanger the security of an institution or its population. Minn. Stat. Ann. § 13.85 (West Supp. 1999). Since SSA presumably would not require any information that came within those parameters, the information should be disclosed as public information.

Ohio:

We understand that Ohio already has agreed to provide SSA with information regarding juveniles being held in detention centers, although the State has not yet provided such information. In Ohio, juveniles committed to detention centers generally are under the custody of the Department of Youth Services. Ohio law provides that "[r]ecords maintained by the department of youth services pertaining to the children in its custody shall be accessible only to department employees, except by consent of the department or upon order of the judge of a court of record." Ohio Rev. Code Ann. § 5139.05(D) (Page 1998). Ohio's Administrative Code provides that names of and confidential information regarding youth in its custody may be released if a Managing Officer deems it to be in the youth's best interest or with the prior written approval of the Director of the Youth Commission and the respective Divisional Deputy Director. Ohio Admin. Code § 5139-4-01(B)(3), (C) (1999). Thus, with the proper authority, the Department of Youth Services can provide SSA with information regarding institutionalized juveniles. Our office contacted Mark, SSA's contact in Ohio for providing names of juvenile detainees. Mark confirmed that the Department of Youth Services had proper authority under those provisions to provide limited information to SSA regarding youths in detention centers.

Wisconsin

We understand from our conversations with your office that SSA already received information regarding juveniles held in detention centers in Wisconsin pursuant to an agreement with that State. Wisconsin law allows the confidential exchange of information regarding records of children in the care of a state agency under either the Department of Corrections or the Department of Health and Family Services, if that confidential exchange is with another social welfare agency, which also keeps the information confidential. Wis. Stat. Ann. §§ 48.78(b), 938.78(b)(1) (West Supp. 1998). Our office contacted Jody H~, SSA's contact at Wisconsin's Division of Juvenile Correction. Ms. H~ confirmed that the State was authorized under the above statutes to release information to other government agencies like SSA.

CONCLUSION

In summary, SSA already has agreements with Ohio and Wisconsin to provide information regarding juveniles held in detention centers. Our research indicates that such disclosure is permissible in those States.

SSA should not have difficulty obtaining agreements with the States of Indiana and Minnesota to obtain information regarding juvenile detainees. In Michigan, SSA should be able to obtain cooperation from superintendents of juvenile detention centers. In Illinois, however, the Department of Corrections may need to amend its regulations, depending on how the current regulations are interpreted, to allow for disclosure of information to SSA.

Thomas W. Crawley

Chief Counsel, Region V

By:________

Suzanne Duman

Assistant Regional Counsel

Effective April, 1999, in the states of Ohio, Wisconsin, Indiana, Minnesota and Michigan, provisions exist which could be interpreted to allow disclosure to SSA of information regarding juvenile detainees. In Illinois, the Department of Corrections may need to amend it's regulations, depending on the interpretation of those regulations, to allow disclosure of such information to SSA. Note that the conditions described in this opinion were valid at the time the opinion was issued in April, 1999. Subsequent users of this opinion are advised to make certain that the provisions described herein remain in effect at the time of application.

You indicated in your January 25, 1999 memorandum that SSA plans to increase its efforts to obtain information on individuals confined in juvenile detention centers in order to correctly suspend title XVI payments to residents of public institutions and to identify the need for new representative payees. Toward that end, you requested a review of state laws to determine whether state laws would allow the release of this information to SSA. Our research revealed some provisions in each state that could be interpreted to allow disclosure to SSA of information regarding juvenile detainees.

Discussion

Ohio

We understand that Ohio already has agreed to provide SSA with information regarding juveniles being held in detention centers, although the State has not yet provided such information. In Ohio, juveniles committed to detention centers generally are under the custody of the Department of Youth Services. Ohio law provides that "[r]ecords maintained by the department of youth services pertaining to the children in its custody shall be accessible only to department employees, except by consent of the department or upon order of the judge of a court of record." Ohio Rev. Code Ann. § 5139.05(D) (Page 1998). Ohio's Administrative Code provides that names of and confidential information regarding youth in its custody may be released if a Managing Officer deems it to be in the youth's best interest or with the prior written approval of the Director of the Youth Commission and the respective Divisional Deputy Director. Ohio Admin. Code § 5139-4-01(B)(3), (C) (1999). Thus, with the proper authority, the Department of Youth Services can provide SSA with information regarding institutionalized juveniles. Our office contacted Mark, SSA's contact in Ohio for providing names of juvenile detainees. Mark confirmed that the Department of Youth Services had proper authority under those provisions to provide limited information to SSA regarding youths in detention centers.

Conclusion

In summary, SSA already has agreements with Ohio and Wisconsin to provide information regarding juveniles held in detention centers. Our research indicates that such disclosure is permissible in those States.

SSA should not have difficulty obtaining agreements with the States of Indiana and Minnesota to obtain information regarding juvenile detainees. In Michigan, SSA should be able to obtain cooperation from superintendents of juvenile detention centers. In Illinois, however, the Department of Corrections may need to amend its regulations, depending on how the current regulations are interpreted, to allow for disclosure of information to SSA.

On March 22, 1995, you asked for a legal opinion regarding Kenneth request that he be paid benefits retroactively to March 1986. Kenneth benefits were suspended effective March 1984, when he was incarcerated on numerous felony counts, and were resumed upon his release in September 1994. Kenneth September 1994 release was the result of an August 31, 1994 Indiana Circuit Court order that set aside an adjudication as an habitual offender and that, consequently, set aside the 30 year enhancement to Kenneth sentence.

In our opinion, it would be appropriate for SSA to find that Kenneth benefits were properly suspended for a total of five years; therefore, he can be retroactively paid benefits beginning April 1989.

DISCUSSION

Section 202(x)(1)(A) of the Social Security Act provides, as pertinent here, that:

no monthly benefits shall be paid for any month during which such individual (1) is confined in a jail, prison, or other penal institution or correctional facility pursuant to his conviction of an offense punishable for more than one year (regardless of the actual sentence imposed) . . . .

42 U.S.C. § 402(x)(1)(A). The regulation implementing this provision, 20 C.F.R. § 404.468(a), provides that "[n]o monthly benefits will be paid to any individual for any month any part of which the individual is confined in a jail, prison, or other penal institution or correctional facility for conviction of a felony." "Confinement," in turn "continues as long as the individual is under a sentence of confinement and has not been released due to parole or pardon." 20 C.F.R. § 404.468(b).

On March 23, 1984, Kenneth was convicted on numerous counts, including several counts of security laws violations and one count of theft. Kenneth was sentenced to up to five years for each felony count, to all run concurrently along with a thirty year enhancement (assessed due to the determination that he was within the definition of an habitual offender). His disability benefits were suspended as of the date of his conviction and incarceration, March 23, 1984. On January 25, 1990, the court issued a sentencing clarification noting that the habitual offender finding was attached only to the theft count for which Kenneth had been sentenced to two years. On May 31, 1994, a court ordered that Kenneth theft conviction be set aside. Subsequently, in an August 31, 1994 order, the court held that Kenneth theft conviction had been the determinative factor in finding that he was an habitual offender and in sentencing him to an enhanced sentence. Therefore, Kenneth enhanced sentence was set aside, and, having served ten years, he was released.

Because Kenneth theft conviction was set aside, his enhanced sentence, which was predicated upon that conviction, was also set aside. As noted above, his longest sentence on the remaining counts (which were to run concurrent) was five years. Hence, from March 1984 to March 1989 he was confined in jail pursuant to a conviction for an offense punishable by more than one year. Thus, for five years, Kenneth met the statutory and regulatory conditions for suspension of benefits; he was confined in a penal institution pursuant to a felony conviction. In fact, Kenneth was confined for ten years. The current POMS provision, DI 11505.001 D.2.c., pertaining to policy regarding the status of a criminal case, provides as follows:

Conviction overturned: Benefits are payable as though the individual had not been imprisoned for that conviction.

Moreover, 20 C.F.R. § 404.988(c)(11)(ii) authorizes that a decision may be re-opened at any time if the conviction of a crime that affected one's right to receive benefits is overturned.

Kenneth proffers a "certificate of final discharge" which he contends establishes that he could have had an early release date of February 17, 1986, apparently based upon factors such as good behavior, for all counts except the theft count. However, consistent with a plain reading of the statute, benefits should be suspended for the period of time that he was physically incarcerated under a sentence for a qualifying conviction. Here, Kenneth was physically incarcerated for five years while he concurrently served five year sentences for convictions that were not overturned. Consistent with POMS, benefits should be payable for the period of time that he was incarcerated that exceeded the sentence for crimes not overturned. Therefore, in our opinion, he should be paid benefits retroactive to April 1989.

Thomas W. Crawley

Chief Counsel, Region V

By:________

Julie Flanagan

Assistant Regional Counsel