Issue
Whether a Title II recipient is "confined," pursuant to section 202(x)(1)(A)(i) of
the Social Security Act (the Act), if, while incarcerated for a 180-day sentence,
he has a 2-day "furlough" every 28 days.
Short Answer
For the reasons explained below, we believe the recipient would be "confined" under
section 202(x)(1)(A)(i) of the Act.
FACTS
According to information you provided, a judge sentenced a Title II Disability Insurance
Benefits recipient to six months (180 days) in jail in Hot Springs, South Dakota.
The recipient's attorney asked and the sheriff agreed to give the recipient a 2-day
"furlough" every 28 days. You did not indicate whether the recipient actually leaves
the jail during his "furlough." It is our understanding from your e-mail that the
recipient's "furloughed" time will be added to the end of his sentence, resulting
in a 192-day sentence. The judge's order did not mention a "furlough," and the judge
has not signed any supplemental orders authorizing a 2-day "furlough." Your request
suggests the "furlough" is an attempt to circumvent the 30-days confinement language
in section 202(x), so the recipient can continue to receive benefits during his sentence.
Legal Analysis
The Ticket to Work and Work Incentives Act of 1999 amended section 202(x) of the Social
Security Act (the Act) to require, as relevant here, that an individual must be convicted
of a criminal offense and remain in the institution for more than 30 continuous days
before the Agency will suspend his benefits._/1 Ticket to Work and Work Incentives
Act of 1999, Pub. L. No. 106-170, § 402(b), 113 Stat. 1860, 839 (1999) (codified as
amended at 42 U.S.C. § 402(x)(1)(A)). Section 202(x) of the Act, 42 U.S.C. § 402(x),
provides in pertinent part:
(1)(A) Notwithstanding any other provision of this title, no monthly benefits shall
be paid under this section or under section 223 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 Agency published the applicable regulations, 20 C.F.R. §§ 404.468(a), (c), 404.1506(d),
prior to the 1999 legislation and has not updated the regulations to reflect the statutory
change that requires confinement for 30 days. See 49 Fed. Reg. 48,182 (Dec. 11, 1984)
_/2; 48 Fed. Reg. 5,714 (Feb. 8, 1983). Nevertheless, in those regulations, the Agency
chose to interpret the term "confined" broadly. The preamble to the final rules which
implement section 202(x)(1) of the Act reflects the Agency's broad interpretation
of the term "confined."_/3 49 Fed. Reg. 48181, 48182 (Dec. 11, 1984). Under 20 C.F.R.
§§ 404.468(a), (c), a convicted felon sentenced to confinement in a penal facility
is considered "confined" for benefit suspension purposes, even though he or she is
serving such sentence outside the bounds of the penal facility. The regulation at
20 C.F.R. § 404.1506(d) also defines "confinement" broadly, stating that the Agency
considers an individual to be confined, even if that person is temporarily or intermittently
outside of the Office of the Inspector General, Region VIII facility, e.g., on work
release. See also POMS GN 02607.160.A.3; cf. 28 C.F.R. § 570.36, Table 1, Item 3 (2007) (Bureau of Prison regulation
providing that an inmate remains in the custody of the institution while on "furlough"
status.).
The South Dakota statutes do not define the term "furlough." State
v. Rollag, 400 N.W.2d 278, 279 (S.D. 1987). We note, however, that the term "furlough" appears
in some South Dakota statutes in the same context as work release or similar program
outside the correctional facility. See S.D. Codified Laws §§ 22-24B-13 (1994) (sex
offenders duty to register prior to discharge, parole, furlough, work release or similar
program outside the facility), 24-15-8.2 (1986) (notification to victim or sentencing
judge of the inmate being placed on regularly scheduled furlough or work release),
24-11A-17 (1991) (an inmate is guilty of escape if the inmate leaves place of employment
or approved community activity, pass, furlough, or sign-out location). Likewise, at
least one South Dakota Supreme Court case refers to "furlough" as a work "furlough"
or other work release program. See e.g., Rollag, 400 N.W.2d 278 (court referred to work release as work furlough). The Agency considers
a Title II recipient on work release to be confined for the purposes of section 202(x)
of the Act. 20 C.F.R. §§ 404.468(a), (c); 404.1506(d); POMS GN 02607.160.A.3. As such, we believe the Agency could consider the recipient in this case "confined"
for the purposes of section 202(x) of the Act._/4
CONCLUSION
Under South Dakota Law, a "furlough" could be interpreted as akin to work release,
which is considered confinement under the regulations and Agency policy. As such,
the Agency could suspend the recipient's benefits until he completes his sentence,
which, if he continues to be furloughed, could be extended beyond 180 days to 192
days.
Deana R. E~-L~
Chief Counsel, Region V
By:________
Stephanie F. K~
Assistant Regional Counsel
_1 Section 402(b) of Pub. L. 106-170 eliminated the requirement that a prisoner's
confinement stem from a crime which is punishable by imprisonment for more than 1
year and replaced it with the requirement that a prisoner be confined for 30 days
before the Agency will suspend Title II benefits.
_2 Although the regulations were amended in 1997, the amendment was technical, changing
the word "Secretary" to "Commissioner." See 62 FR 38450, July 18, 1997.
_3 The preamble to the final rules which implemented the original prisoner nonpayment
provision in former section 223(f) of the Act, 48 Fed. Reg. 5711, 5713 (Feb. 8, 1983),
also broadly interpreted the term "confined."
Office of the Inspector General, Region VIII facility, e.g., on work release. See also POMS GN 02607.160.A.3; cf. 28 C.F.R. § 570.36, Table 1, Item 3 (2007) (Bureau of Prison regulation
providing that an inmate remains in the custody of the institution while on "furlough"
status.).
_4 As noted, we do not know whether the recipient actually leaves the correctional
facility during his furlough. If he remains on the grounds of the correctional facility,
he remains not only legally confined, but also physically confined. Although our position
does not rely on physical confinement, such confinement during furlough would strengthen
our position that the beneficiary should not receive Title II benefits. See 42 U.S.C. §§ 402(x)(1)(A), (B).