| The Social Security Administration
manages six separate types of benefits payable to people who
meet certain eligibility criteria (overview)
All of the programs have special rules
that affect you if you go to prison, jail or a correctional
facility.
Benefits
Can I receive Social Security benefits of any kind if I am
incarcerated? No, you are not
entitled to benefits under any of these programs while you
are confined in a prison, jail or correctional institution.
Read more on this fact sheet from the Social Security
Administration – “What
Prisoners should Know…”
What happens if I am charged but found not guilty or
exonerated? The Social Security Administration will continue
to pay your benefit if a court of competent jurisdiction has
found that you are not guilty, dismissed the charges,
vacated the warrant for arrest, or taken similar exonerating
action.
Can I get benefits once I am released? The Social Security
Administration does not provide any benefits just for
ex-prisoners. Once you are released, you can receive
benefits if you meet the eligibility criteria. See the
program descriptions above.
What if I am released to a halfway house? Will I be eligible
for benefits? First you must meet the program criteria. If
you do meet the program criteria and you are living in a
halfway house that is under the control of the State
Department of Corrections, SSA will not pay you benefits
until you are released from the total control of the State
Department of Corrections.
If you are living outside of the prison and you are paying
your own expenses (food, rent, clothing, utilities, medical
care, etc., except for the cost of your ankle bracelet
monitoring) you can get Social Security benefits again.
Whenever you are released from prison or jail to a halfway
house, you should check with your local Social Security
office to find out if your benefits can start again.
If you are already receiving Social Security benefits or
Supplemental Security Income (SSI) benefits when you go to
prison – your benefits should stop. When you initially
applied for Supplemental Security Income (SSI) or for Social
Security retirement, disability, or survivors (also known as
Title II) benefits, SSA told you about certain changes that
could affect your ability to continue to get payments. You
are required to notify Social Security of the fact that you
were convicted of a crime and confined. How to contact
Social
Security
- If you were receiving SSI - the law states that you cannot
live in a public institution (for example, a jail, prison,
penal facility, etc.) for a full calendar month or more, and
continue to get your SSI benefits.
- If you were receiving Social Security (Title II) benefits
- the law states that if you commit a crime and a court
convicts you, and you serve more than 30 continuous days in
jail following the conviction, you cannot get your Title II
benefits.
Overpayments
It is possible that you may forget to notify Social Security
when you are incarcerated and that your benefits will
continue. This will create an overpayment. While it may seem
like a good idea at first to let the payments continue,
Social Security will find out and they will charge you with
an overpayment.
- Incentive for reporting your incarceration – Institutions
are entitled to receive $200 - $400 for reporting the fact
that you are confined in their institution. SSA also
encourages individuals to submit anonymous reports on
someone in jail who is improperly receiving Social Security
benefits. Individuals cannot receive the money incentive.)
- Your future benefits will be affected – If you are charged
with an overpayment, SSA will seek to recover it from your
future benefits. It is possible for SSA to sue you to
recover the overpayment but that does not happen very often
and never for a few months of overpaid benefits.
- Fraud - If you commit a long-term fraud by receiving
benefits for years while incarcerated, especially if you
purposely try to conceal your status as a prisoner, the case
may be referred to the Office of the Inspector General and
possibly the Attorney General for fraud prosecution. SSA
operates an anonymous Fraud Hotline where the public can
report suspected fraud.
More on fraud from SSA
More on SSI
Overpayments and
what the regulations say
Appeal and/or Waiver of an Overpayment – You will have 60
days after the notice that you are overpaid to decide
- Is the amount correct? and
- If there was an overpayment
of some amount, are you eligible for a waiver of
the overpayment recovery?
To show that you are eligible for a waiver, you must prove
to Social Security that you are:
- without fault in causing the overpayment and
- adjustment or recovery would “defeat the purpose of the
Act” (this means that you will not be able to meet your
“ordinary and necessary living expenses” if you are forced
to repay. This will require a financial statement. Be
mindful of the fact that many of your “ordinary and
necessary living expenses” do not exist while you are
incarcerated.
- If you cannot show financial hardship, you may be able to
show that it would be unfair if you had to repay the
overpayment. This is usually defined as
- You changed your position for the worse or
- You relinquished a valuable right because you relied on
the overpayment .The regulations offer examples of these.
This will be the position that Social Security will take if
you are charged with an overpayment as the result of being
incarcerated and not notifying SSA of the change in
circumstances.
“When you applied for Social Security benefits, you were
told of the changes or choices that you might make while
receiving Social Security benefits that could affect your
ability to continue to get payments. SSA told you that you
are responsible for reporting these changes to us. You were
also given a copy of those conditions or reporting
requirements for your own records. Social Security has a
record of your agreement that you understood these reporting
requirements and that you received a copy of these
materials. This makes you responsible for paying back any
money you should not have gotten because you did not report
to SSA.”
Taking Action an on Overpayment
- First - limit your liability by making sure that the
checks stop.
- Second – as soon as you receive an overpayment notice,
check the date by which you need to file
- an appeal (called a
reconsideration) if the amount of the overpayment is
wrong - Background on
asking for a reconsideration
(Ask for a case review.) and/or
- request a waiver of the overpayment if you believe that
you are not at fault and cannot any it back - Background on
a waiver request and link to the SSA form to
request a
waiver
- Third – gather your evidence, review the standards for a
waiver and prepare your argument. Find legal help to assist
you. Submit it on time!
Benefits to others based on your work record - Although you
cannot receive monthly Social Security benefit payments
while you are confined, your spouse or children can be paid
benefits on your record if they are eligible. And if you
have worked and paid Social Security taxes, survivors
benefits also may be paid to certain family members in the
event of your death.
SSI and “Fugitive Felons”
An individual is ineligible to receive SSI benefits for any
month during which he or she has:
- an unsatisfied warrant for a crime that is a felony or, in
jurisdictions that do not define crimes as felonies, is
punishable by death or imprisonment for a term exceeding one
year regardless of the actual sentence imposed under the
laws of the place from which the warrant is issued. The
Social Security Administration defines this individual as a
"fugitive felon";
- an unsatisfied warrant for avoiding custody or confinement
after conviction for a crime which is a felony or, in
jurisdictions that do not define crimes as felonies, is
punishable by death or imprisonment for a term exceeding one
year regardless of the actual sentence imposed under the
laws of the place from which the person flees; or
- violated a condition of probation or parole imposed under
Federal or State law.
Source.
Also, the Social Security Administration may continue to pay
an individual's benefit if the individual establishes that
the offense underlying the warrant or imposition of the
probation or parole (as well as the violation of probation
or parole) was both nonviolent and not drug–related and
there were mitigating circumstances for not satisfying the
warrant. Selection as Rep Payee
A Representative Payee (Rep Payee) is someone who receives
Social Security or SSI benefits on behalf of someone else
who is unable to mange their own funds (often child or
person with a mental disability or addiction) Here is the
form to request to be appointment as a
Rep Payee
If you were a Rep Payee for someone when you were
incarcerated, SSA will look into whether you are still the
best person to manage the payments on behalf of the Social
Security beneficiary. The fact that you are in jail does not
automatically mean that you cannot continue as a
representative payee. If you want to be appointed as a Rep Payee for someone on
the outside, there is a slight possibility but it will
depend upon whether there is a better choice outside and the
nature of your crime. It is not likely. If the crime of
which you were convicted involved a money fraud or theft or
if you were violent against the person who needs the help,
you will not be appointed.
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