Fugitive Felons and the Long Arm of the Social Security Administration
AIDS-service providers in Los Angeles report an increase in the number of clients whose Supplemental Security Income (SSI) benefits suddenly have been cut off. In many of these situations, the reason why the SSI has stopped is that the benefits recipient has an outstanding felony warrant or has violated parole or probation.
Suspension of Benefits
In 1996, Congress made a number of changes to the Social Security laws.
One of these changes was adding a provision that SSI will be suspended for any month after August 1996 if the recipient is "fleeing to avoid prosecution, or custody, or confinement after conviction for a crime" which is considered a felony (or, in New Jersey, a "high misdemeanor").
Whether the act is considered a felony or a "high misdemeanor" depends on the laws of the state where the crime occurred -- it does not depend on the laws of the state of California simply because the recipient now lives here. In California and in many other states, it should be noted, a failure to appear in court on a misdemeanor can cause the charge to become a felony. This means that if you were cited for a misdemeanor and you never went to court on the charge, that may have been converted to a felony -- and that may mean you have an outstanding felony warrant!
Part of these 1996 changes to the SSI laws included congressional authorization for the Social Security Administration (SSA) to set up a computer matching program to find those SSI recipients who have the outstanding felony warrants. The internal Social Security regulations, to implement this new policy, were not finalized until 2000. This is why, some six years after the laws were changed, SSI benefits "suddenly" may stop for certain recipients.
When Do the Benefits Stop?
SSI benefits will stop as of the first of the month in which "a warrant, court order or decision, or order or decision by an appropriate agency (e.g., parole board) is issued which finds that the individual is fleeing (or fled) to avoid prosecution, or custody or confinement after conviction, for a crime ... or is violating (or violated) a condition of his/her probation or parole" or SSI benefits also will stop as of the first of the month "during which the individual fled to avoid such prosecution, custody or conviction, or violated a condition of probation or parole," whichever is earlier.
Because the law was changed as of Aug. 22, 1996, the recipient may be considered ineligible for SSI only as of August 1996. If, for example, there is an outstanding 1990 warrant for an SSI recipient, that individual is considered ineligible only as of August 1996, not as of the 1990 issue date of the warrant. Note that other Social Security advocates have reported seeing paperwork where SSA demands repayment of benefits prior to 1996. Notices like these can be challenged as part of the appeal (and so far, SSA backs down on the issue of the date).
The Division Chief of the Los Angeles Public Defender's Office reports that they are getting calls every week from SSI recipients with warrants that are 10-12 years old, whose SSI benefits only now have been terminated. The worst case which they have seen: a 91 year old SSI recipient, whose outstanding warrant was 30 years old. The typical case: an SSI recipient, who is 40-50 years old, who has a bench warrant over 8 years old.
If the recipient takes the necessary legal steps to resolve the violation or "fix" the warrant, and SSA receives written confirmation of this, then the SSI benefits will resume as of the first day of the month following receipt of that written notice.
"Fixing" an Outstanding Warrant
Outstanding warrants concern felonies, so we are talking about criminal cases. The probation violation or the parole violation may involve only a misdemeanor. Unfortunately, some recipients may have to serve time in jail or in prison, in order to resolve ("fix") the outstanding warrant or parole/probation violation against them. Some recipients may have to travel to another state -- the state which issued the warrant or the violation notice -- in order to obtain legal advice from a Public Defender on the best way to "fix" the warrant or violation. (HALSA cannot provide any legal advice on any criminal legal issue.)
Since the fleeing felon laws apply to those individuals who receive SSI, these laws are applied to men and women who are low-income -- they had to be low-income in order to qualify for the SSI benefits. Since these recipients are low-income, it is almost a certainty that they will not have the money to hire a criminal defense attorney to investigate their case and to represent them. These recipients may have to rely on the Public Defenders' Office in the state where the warrant or violation exists. (Read the table below for specific Public Defender telephone information.)
Afraid to turn yourself in? That is totally understandable, but if you believe that there is an outstanding warrant against you, or a parole or probation violation, you are urged to contact the Public Defenders' Office in the state where the warrant or violation was issued, to find out whether you will have to turn yourself in, before you can begin to vacate the warrant or violation.
If an outstanding warrant, or violation results in incarceration for over 12 months, the recipient's SSI will terminate. Upon release from custody, the recipient will have to file a new SSI application.
What if I Do Nothing?
Social Security Administration regulations permit sharing information with law enforcement -- therefore, a recipient of SSI can be tracked through their Social Security number to the address where the SSI notices are mailed.
If the outstanding warrant or violation is for a particularly serious offense, the FBI may come knocking at the door (and, yes, this has happened). Even if no one shows up at the door, as long as the warrant or the violation remains outstanding, the recipient will be unable to receive SSI.
Will I Lose Medi-Cal and SSDI, Too?
If you are living in California and you receive SSI, then you also receive Medi-Cal. Under California law, Medi-Cal cannot terminate your coverage just because the SSI stops. Medi-Cal must send you a re-determination notice and must re-evaluate your case before your Medi-Cal can stop.
Congress wants to extend this Fleeing Felon rule to SSDI (Social Security Disability Insurance) benefits. Right now, however, this law does not apply to SSDI. If you were approved for SSI/SSDI "concurrent" benefits, your SSI benefits will terminate, but your SSDI benefits will continue.
In California, Fleeing Felon rules have been enacted which will apply to anyone receiving Veterans Administration benefits, and which already apply to anyone receiving Temporary Assistance to Needy Families (TANF), and Food Stamps.
If I "Fix" the Warrant, Will I Live Happily Ever After?
Resolving the warrant or violation may not be the end of the puzzle.
The law does not require simply that the SSI recipient's benefits stop until the warrant or violation is resolved. The law actually provides that the SSI recipient is not eligible to receive benefits for any month during which s/he is considered to have been fleeing prosecution.
Once the recipient resolves the warrant or violation, the recipient becomes eligible to receive SSI for future months. If, for example, the recipient receives the SSI suspension notice in June 2001 for a probation violation in February 1997, that is a period of four years and four months when the recipient was not eligible to receive SSI.
This means that the recipient's SSI benefits will have been overpaid. In this example, the overpayment may be as much as $40,000. SSA will want to collect this overpayment. If the warrant or violation is resolved and the recipient begins to receive SSI again, there will be a monthly deduction in order to repay this overpayment. To find out how much may be deducted, you should call the APLA Benefits Department at (213) 201-1472. There is a specific formula which SSA uses, but a recipient can negotiate a lower payment amount, in some cases.
If you want SSA to waive, cancel or reduce the overpayment, you have 65 calendar days from the date stamp on your Notice of Overpayment to file a written appeal (a Request for Reconsideration). If you do not file in time, you will have to prove you had a good reason to file late. If you want to receive SSI checks while you are appealing the termination of benefits or the overpayment (or both), you must file your Request for Reconsideration within 10 calendar days.
How Does Social Security Find Out?
SSA becomes aware of outstanding warrants and probation/parole violations by the states which issued them. SSA then informs the FBI. This gives the FBI a chance to pick up the SSI recipient before he or she may realize that there is a problem!
SSA is not allowed to terminate SSI benefits unless there is corroborating information of the outstanding warrant or violation, which the state's law enforcement agency must provide. This corroboration may be provided in a variety of forms, including:
A copy of a court order or decision, or other court document.
A copy of an arrest warrant or order.
A copy of a court decision, parole board decision, or other agency decision which determined that the recipient violated a condition of probation or parole.
A copy of the document will be kept in the recipient's SSA file.
Call for Advice
Among the clients who have called HALSA so far, none have had a copy of the arrest warrant or probation/parole violation attached to the SSI termination notice which they have brought to the HALSA office. Therefore, HALSA advises anyone who receives such an SSI termination notice without a copy of the arrest warrant or probation/parole violation immediately to call HALSA, AIDS Project Los Angeles' Public Benefits Department or AIDS Service Center.
There are specific Social Security rules about receiving "third party" information concerning a recipient, and verifying the accuracy of that information with the recipient before SSA is permitted to take action which may affect the recipient's benefits. These "third party" information rules do not apply to these law enforcement agency or court documents, concerning the fleeing felon rules. This means that SSA has been taking action to suspend a recipient's SSI benefits based on the information received from the law enforcement agency without first verifying that information with the recipient. SSA, however, has an internal regulation which requires the agency to examine the legal document (the warrant) before the termination of benefits notice is prepared or sent. SSA has not been following this internal regulation, in these "fleeing felon" cases -- this is a due process violation.
Doesn't Someone Have to Tell Me What Is Going On? In virtually any Social Security Administration action which may affect a recipient's benefits, there must be written notice to the recipient which explains the action and outlines how the recipient can appeal the action.
For these fleeing felon situations, if the recipient has just applied for SSI, the Social Security Administration will send a Notice of Disapproved Claim, (SSA-L8030-U2) and there will be a caption entitled "Why We Can't Pay You." If the recipient already has been receiving SSI benefits, the Social Security Administration will send a Notice of Planned Action (SSA-L8155-U2) and there will be a caption entitled "Why Your Payments Changed."
This Notice of Planned Action will show that the recipient's benefits have changed to $0.00 per month. This Notice of Planned Action also will indicate that SSA may contact the recipient later regarding those SSI benefits which already have been paid -- this means that there will be a later written notice about an SSI overpayment.
So What Do I Do?
As recommended here, if you believe there is an outstanding warrant or probation or parole violation for a felony and you have not been contacted already by SSA, you immediately should call the Public Defender's Office in the state where that warrant or violation notice would have been, or will be issued.
If you have received a Notice of Planned Action from SSA, you will have to file a written appeal within 10 calendar days of the date stamped on this notice, in order to continue receiving SSI (Aid Paid Pending) while you appeal the suspension. Call APLA's Benefits Department, AIDS Service Center or HALSA for assistance in completing and filing these appeal forms.
Even if you argue poor health and other hardships as a defense, please note that a recipient who cannot afford to travel to the state which issued the warrant or violation notice may not have valid grounds to win an appeal of the SSI suspension. If you are too sick to travel to the state which issued the warrant or violation notice, you should explain this to the Public Defenders' Office when you call.
Social Security Administration clerks have been known to tell recipients that they cannot receive Aid Paid Pending in such cases because they have "no" defense. Clerks have no authority to make such an assessment about your appeal. Rudeness by SSA staff and mis-information actually can be an additional defense, in some cases. (Read the table for tips on how to handle such mis-information.)
At present, the SSI recipients who may have a valid defense to the suspension of benefits would have written documentation to prove that the parole or probation violation already has been resolved. Some SSI recipients with common names (John Mitchell, Jose Ramirez, Mary Smith) may receive termination notices for another SSI recipient with the same name. These "mistaken identity" cases must be appealed immediately. These SSI recipients should have no overpayment and no termination of benefits whatsoever.
There are documented cases of people who have traffic or other misdemeanor warrants receiving SSI termination notices. If the warrant is not for a felony, then the SSI recipient cannot have his or her SSI benefits terminated.
There was one documented case of someone who cleared the warrant on July 5, 2002, but on August 20, 2002, the Social Security Administration office on Wilshire Boulevard issued a termination of benefits notice.
There even has been a documented case where SSA tried to terminate the recipient's SSDI benefits, in addition to the SSI benefits.
All of this means that if your suspension of benefits involves a warrant, you may have a valid defense if the warrant is not for a felony, if you left the state for family, health or other legitimate reasons, or if the SSA file does not contain a copy of the warrant which actually describes you as "fleeing" or "in flight." Such recipients should call APLA's Benefits Department at (213) 201-1472, AIDS Service Center at (626) 441-8495, or the HALSA intake line at (213) 201-1640 for assistance.
This Law Is Not Justice!
If all of this sounds grossly unfair to you, you should be aware that a number of attorneys agree with you. Some of them are bringing legal challenges on behalf of their clients who are assessed overpayments as the result of ineligibility under the fleeing felon rules. To date, over 45,000 SSI recipients across the country have had their benefits terminated, as a result of this law.
One woman in Northern California has appealed the termination of her SSI benefits -- and actually won her Administrative Law Judge hearing! The Social Security Administration Regional Office immediately appealed her victory to the Appeals Council. The irony is that where the Appeals Council normally takes 18-24 months to rule on an appeal to their office, in this woman's case, they reversed the Administrative Law Judge's decision in less than five weeks! This is the first case which will be appealed to the U.S. District Court. That federal court lawsuit is pending.
The Final Warning
If you file an appeal of your SSI termination, you request Aid Paid Pending, you receive Aid Paid Pending, and you lose all of your appeals, your overpayment still will have to be repaid -- and it will have increased for every dollar of Aid Paid Pending which you receive. If you return to work, your income tax refund (and even your paychecks) probably will be garnished, to repay the overpayment.
Jenny Kaufmann of the National Senior Citizens Law Center provided research assistance for this article.
The information in this material is for the sole purpose of providing general information and must not be construed as legal advice. It is not legal counsel; and, the dissemination of the information does not create an attorney-client relationship. While every effort has been made to ensure that the information given is current, the law does change and information given above may become dated. Consequently, you should seek legal counsel for advice specific to your situation before acting.
Funded by the County of Los Angeles, Department of Health Services, Office of AIDS Programs and Policy.
|Leslie Kline-Capelle is the Public Benefits Staff Attorney at the HIV & AIDS Legal Services Alliance. HALSA can be reached by calling (213) 201-1640.|