Jail, prison, and social security

What about            

What about a client who gets social security disability benefits and later is incarcerated? What about the client who is injured while incarcerated? What about the client, convicted of a crime, goes to a incarceration facility and escapes?

The start of any inquiry starts with SSR 83-21.

“The law (P.L. 96-473) provides that title II benefits and determinations of disability for prisoners and persons convicted of felonies will be restricted as follows:

1. Any physical or mental impairment which arises or is aggravated (but only to the extent of the aggravation) in connection with the commission of an offense after October 19, 1980, which constitutes a felony under applicable law, and for which the individual is subsequently convicted, shall not be considered in determining whether the individual is under a disability. This exclusion applies regardless of whether the individual is incarcerated pursuant to conviction. (The impairment or aggravation of an impairment must be excluded for the lifetime of the individual.)

2. Any physical or mental impairment that arises or is aggravated (but only to the extent of the aggravation) in connection with the individual's confinement in a jail, prison, or other penal institution or correctional facility pursuant to such individual's conviction of an offense committed after October 19, 1980, constituting a felony under applicable law, shall not be considered in determining whether such individual is under a disability for purposes of benefits payable for any month during which such individual is so confined. If client was injured while in prison. The impairment suffered -- or the worsening of an existing impairment -- while the client was in prison cannot be used to obtain benefits. But the client may be able to obtain benefits after being released from prison.

( If a client is in prison and become disabled, the client can apply for Social Security disability benefits while in jail.  If found disabled benefits will not start to accrue until the client has been disabled for five full calendar months or until the first full calendar month after the client is released, whichever is later.  This makes finding an attorney difficult given the lack of back benefits)

NOTE: The foregoing provisions are applicable to title II claimants: applicants for disability insurance benefits (DIB); for childhood disability benefits (CDB); or for disabled widows, widowers, or surviving divorced spouses benefits (DWB).

3. No monthly benefits shall be paid by reason of being under a disability to any individual for any month during which such individual is confined in a jail, prison, or other penal institution or correctional facility pursuant to conviction for an offense consulting a felony under applicable law, unless the prisoner is actively and satisfactorily participating in a rehabilitation program which has been specifically approved for that prisoner by a court of law, and which as determined by the Secretary is expected to result in the individual being able to engage in substantial gainful activity (SGA) upon release and within a reasonable time. This provision applies to a felony which was committed at any time and is effective for benefits payable for months beginning on or after October 1, 1980; it applies only to DIB and CDB (not DWB) claimants and beneficiaries.

When a prisoner's benefits are suspended, payment of auxiliary benefits will continue to be made (as though the prisoner were receiving benefits) to others who are entitled on the basis of the wages and self- employment income of the prisoner “.

Essentially a claimant's SSI benefits will be suspended after one full month incarceration (unless he participates in a rehabilitation program). Of more significances is the situation where the claimant is incarcerated for 12 months or more. If that takes place, benefits that may have been reinstated without a new disability application, will be lost and a new application would be needed. Similarly SSDI benefits will be suspended after 30 days of incarceration (unless the claimant participates in a rehabilitation program). However, the benefits will be reinstated the month following release.

A claimant who has a past conviction and incarceration on their record, who applies for social security is not eligible to receive any back-benefits for the time period in which he were incarcerated. If the claimant who is receiving disability benefits (also applies to receipt of retirement benefits) commits a felony and is later convicted of the offense, will have any disability payments that he was receiving stopped until such a time as he is released.

If claimant is/was receiving SSDI benefits and has dependents, auxiliary benefits, paid to eligible family members- will continue.

What is incarceration? The easy answer is – claimant is in prison/confinement. What if released to halfway house? What if released to his home with an ankle bracelet? As a general rule if the claimant is living in a situation under government control/expense, SSA will not pay benefits until released from the total control of the Department of Corrections. However, if the claimant is living outside of prison and he is paying his own expenses (food, rent, clothing, utilities, medical care, etc., except for the cost of your ankle bracelet monitoring) he can get Social Security benefits.

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