I previously wrote about how Social Security stops benefits for fleeing felons. However, there has been considerable litigation across the country regarding what constitutes a “fleeing felon.”

Social Security changed its definition of “fleeing” due to a settlement in the nationwide class-action lawsuit.

The April 2009 issue of capital NOSSCR Social Security Forum has a lengthy discussion of this:

Under the POMS [a set of regulations which govern Social Security procedures], the mere fact that a warrant is active or outstanding, amounts to a “fleeing” determination by SSA, with no effort to determine the individual’s intent to avoid law enforcement and prosecutors intent to pursue the individual.

….

The settlement provides that SSA will change its policy from April 1, 2009, going forward. Effective immediately, SSA will suspend or deny benefits only if the individuals outstanding felony warrant was issued for one of the following three offenses, which are directly based on the concept of “fleeing”:

• Escape (offense code 4901)
• Flight to avoid prosecution, confinement, etc (offense code 4902)
• Flight-escape  (offense code 4999)

….

Relief will be provided to those whose benefits have previously been suspended or denied.

SSA will cease collecting overpayments based on challenged policy and will repay full retroactive benefits to individuals been suspended or denied as of January 1, 2007, or who had a live administrative claim pending on this issue on August 11, 2008, and who continue to be otherwise eligible for benefits.

SSA will send a notice to anyone who had benefits suspended or denied since January 1, 2000.

…

Note: [This] settlement applies only to nonpayment provisions for “fleeing felons.” Nonpayment provisions will continue to apply to those who violate their probation or parole.

Basically, Social Security is agreeing to consider the  individual’s intent  in determining whether an individual is a “fleeing felon.”

This suggests that simply having an outstanding felony warrant might not be enough for Social Security to discontinue benefits. However, this has been a hotly litigated area of the law. While this is a very favorable determination for anyone who had their benefits stopped due to the “fleeing felon” rule, the issue may not yet be settled.

I previously wrote about how Social Security can stop benefits if a person is a fleeing or fugitive felon.

The courts have been wrestling with the question of whether an outstanding arrest warrant (not a conviction, just the arrest warrant) is enough to make a person a “fleeing felon.”

NSCLC Website writes about a court’s rejection of Social Security claiming a person was “fleeing” in order to stop their benefits.  

Another court, this time in Tennessee, has rejected the Social Security Administration’s (SSA) position that it can suspend Supplemental Security Income (SSI) benefits by relying on the existence of an outstanding arrest warrant alone to conclude that a person falls within the statutory prohibition on payment of benefits to a person who is “fleeing to avoid prosecution” for a felony. Caldwell v. Astrue, 2008 WL 2713714 (E.D. Tenn. July 10, 2008). The court relied on the SSI regulation, 20 CFR 416.1339(b)(1), which “requires a court finding that the person is fleeing,” as well as on Sixth Circuit caselaw interpreting the similar language in the federal criminal law provision for tolling the statute of limitations when someone is “fleeing justice.”  18 U.S.C. 3290. Mr. Caldwell said he left California after being questioned by police, not because he was fleeing to avoid prosecution, but rather out of fear for his safety because of threats made by the individuals involved in the criminal matter.

Keep in mind that this case is just in the 6th District and is not “the law of the land.” 

Via Yet Another Court Rejects SSA’s ‘Fleeing’ Rule.

Note: there is a lot of litigation concerning what constitutes a “fleeing felon.” Check with a lawyer if you, or someone you love, has had the benefit stopped by Social Security because they are a, “fleeing felon.”

I previously wrote about how Social Security disability benefits stop during incarceration.

However, your Social Security disability benefits can also stop if you labeled a “Fugitive Felon.”

Fugitive felons is anyone who is

• Fleeing to avoid prosecution for a crime which is a felony; or
• Fleeing to avoid custody or confinement after conviction for a crime which is a felony; or
• Individuals receiving Title XVI payments or Title II benefits who are violating a condition of probation or parole imposed under Federal or State law.

Read more at Social Security (link removed – Social Security took down the page).

Jonathan Ginsberg of the Social Security Disability Blog writes about what happens to your Social Security benefits if you are in jail/prison.

I recently received an email question from a blog reader about the eligibility of a convicted felon for Social Security disability benefits.  There is a simple answer here – you may not collect disability benefits during the time you are incarcerated.  Social Security ruling 83-28 addresses this situation directly.

Via May an Incarcerated Felon Receive Social Security Disability Benefits?.

SSR 83-28 notes that Congress intended to deny prisoners Social Security disability benefits during incarceration because, “prisoners … do not need a continuing source of income because their basic needs are already furnished at public expense.”

This seems pretty cut and dried.  However, the more I look at this issue, the more I wonder if benefits can be paid to an incarcerated individual while incarcerated, but before a conviction, or while incarcerated for a misdemeanor.

The Social Security regulation on this topic 20 CFR 404.468 states:

(a) General. No 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. This rule applies to disability benefits (§404.315) and child’s benefits based on disability (§404.350) effective with benefits payable for months beginning on or after October 1, 1980. For all other monthly benefits, this rule is effective with benefits payable for months beginning on or after May 1, 1983. However, it applies only to the prisoner; benefit payments to any other person who is entitled on the basis of the prisoner’s wages and self-employment income are payable as though the prisoner were receiving benefits.

(b) Felonious offenses. An offense will be considered a felony if-
(1) It is a felony under applicable law: or
(2) In a jurisdiction which does not classify any crime as a felony, it is an offense punishable by death or imprisonment for a term exceeding one year.

(c) Confinement. In general, a jail, prison, or other penal institution or correctional facility is a facility which is under the control and jurisdiction of the agency in charge of the penal system or in which convicted criminals can be incarcerated. Confinement in such a facility continues as long as the individual is under a sentence of confinement and has not been released due to parole or pardon. An individual is considered confined even though he or she is temporarily or intermittently outside of that facility (e.g., on work release, attending school, or hospitalized).

(d) Vocational rehabilitation exception. The nonpayment provision of paragraph (a) of this section does not apply if a prisoner who is entitled to benefits on the basis of disability is actively and satisfactorily participating in a rehabilitation program which has been specifically approved for the individual by court of law. In addition, the Commissioner must determine that the program is expected to result in the individual being able to do substantial gainful activity upon release and within a reasonable time. No benefits will be paid to the prisoner for any month prior to the approval of the program.

In summary, this regulation says:

1. A disabled individual’s Disability Insurance benefits are stopped while incarcerated for a felony conviction.
2. Benefits remain stopped during intermittent release such as work release, school or hospitalization.
3. Auxiliary benefits (benefits to spouse or children) continue during the incarceration.
4. Benefits can continue during parole.

But what about benefits during incarceration, but prior to conviction for a felony?

What if the conviction is for a misdemeanor?

20 CFR 404.468 only stops SSDI benefits for a felony conviction.  This suggests that benefits could possibly continue before the conviction (despite incarceration) or if the conviction is only for a misdemeanor.

So, does SSR 83-28 trump 20 CFR 404.468 and stop benefits in these instances?

Here is another interesting wrinkle: 20 CFR 416.1339 deals with suspension of Supplemental Security Income (SSI) benefits (note: not SSDI benefits) for fugitive felons:

(a) Basis for suspension. An individual is ineligible for SSI benefits for any month during which he or she is—

1) Fleeing to avoid prosecution for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which the individual flees (or which, in the case of the State of New Jersey, is a high misdemeanor under the laws of that State); or

2) Fleeing to avoid custody or confinement after conviction for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which the individual flees (or which, in the case of the State of New Jersey, is a high misdemeanor under the laws of that State); or

2) Violating a condition of probation or parole imposed under Federal or State law.

Basically, your SSI benefits are stopped while avoiding arrest for a felony warrant (before conviction) or for a felony conviction, or while violating probation or parole.

Do your benefits stop and return between arrest and conviction?

How about this fact pattern: let’s say you pick up a felony charge on January 1. You are arrested on February 1. And you are convicted on March 1.

Does this mean your benefits stop between January 1 – January 31 for fleeing to avoid prosecution for a felony crime? It looks that way.

Once you are in custody, do your benefits resume between February 1 – February 28 because 1) you are no longer fleeing, and 2) even though you are in custody, you have not been convicted of a felony?

Finally, are benefits stopped at all, regardless of conviction or incarceration, if the charge/conviction is for a misdemeanor?

Updated 09/10/10: The general rule of thumb is that an individual is not eligible to receive Social Security disability benefits (SSDI or SSI) during incarceration. It does not matter if the conviction is for a misdemeanor or a felony.

However, when benefits stop differs depending on whether you are receiving SSDI or SSI. As a result, individuals may receive Social Security benefits for a short time after incarceration. Click here for more information.