Social Security: Are Benefits Paid to Incarcerated Individuals?

Social Security: Are Benefits Paid to Incarcerated Individuals?

June 22, 2022
Social Security: Are Benefits Paid to Incarcerated Individuals?
Background
Specific circumstances of confinement resulting in the
Social Security is a work-related federal benefit program
suspension of benefits are outlined in the Social Security
that is funded primarily by dedicated payroll taxes paid by
Act. In part, Section 202(x)(1)(A) of the Social Security
covered workers and their employers. The program pays
Act states that, with respect to periods of confinement for
monthly cash benefits to eligible workers when they retire
more than 30 continuous days, no monthly Social Security
or become disabled and to the eligible family members of
benefits shall be paid to individuals who are:
retired, disabled, or deceased workers. In general, because
Social Security is a work-related contributory program,
confined in a jail, prison, or other penal institution or
there are few restrictions on the payment of benefits to
correctional facility pursuant to his [or her] conviction of
individuals who have established entitlement to benefits.
a criminal offense,
An individual becomes entitled to benefits when he or she
confined by court order in an institution at public expense
meets all of the eligibility requirements for benefits and
in connection with—
files an application for benefits with the Social Security
Administration (SSA). For background on Social Security,
a verdict or finding that the individual is guilty but
see CRS Report R42035, Social Security Primer.
insane, with respect to a criminal offense,
a verdict or finding that the individual is not guilty
One exception is the payment of benefits to individuals who
of such an offense by reason of insanity,
are incarcerated. This In Focus explains what happens to an
individual’s Social Security benefit payments during a
a finding that such individual is incompetent to stand
trial under an allegation of such an offense, or
period of incarceration and to benefits paid to family
members on the basis of that individual’s work record, as
a similar verdict or finding with respect to such an
well as other related issues.
offense based on similar factors (such as a mental
disease, a mental defect, or mental incompetence),
The discussion focuses on benefits for individuals who are
[or]
incarcerated (prisoners and certain other inmates of public
immediately upon completion of confinement as
institutions). Rules governing the nonpayment of benefits
described in [the first condition above] pursuant to
for incarcerated individuals generally also apply to fugitive
conviction of a criminal offense an element of which is
felons and to individuals who are in violation of probation
sexual activity, is confined by court order in an institution
or parole. However, this In Focus does not address these
at public expense pursuant to a finding that the individual
individuals. Similarly, this In Focus does not address
is a sexually dangerous person or a sexual predator or a
Supplemental Security Income (SSI) benefits with respect
similar finding[.]
to incarcerated individuals. SSI is a separate need-based
Section 202(x) of the Social Security Act (Limitation on
program that is also administered by SSA.
Payments to Prisoners, Certain Other Inmates of Publicly
Are Benefits Paid to an Individual Who Is Funded Institutions, Fugitives, Probationers, and Parolees)
Incarcerated?
is at https://www.ssa.gov/OP_Home/ssact/title02/0202.htm.
See also Title 42, Section 402(x), of the U.S. Code.
Stated generally, Social Security benefits are suspended
when (1) a beneficiary is convicted of a criminal offense
Section 204(a)(1)(B)(ii) of the Social Security Act prohibits
and sentenced to a period of confinement in a correctional
the payment of any retroactive Social Security benefits to
facility or institution and (2) based on that conviction the
incarcerated individuals. Section 204 of the Social Security
beneficiary remains confined in a U.S. correctional facility
Act (Overpayments and Underpayments) is at
or institution for more than 30 continuous days. See SSA’s
https://www.ssa.gov/OP_Home/ssact/title02/0204.htm. See
Program Operations Manual System (POMS), Section GN
also Title 42, Section 404, of the U.S. Code.
02607.160: Title II Prisoner Suspension Provisions, at
https://secure.ssa.gov/apps10/poms.nsf/lnx/0202607160.
Are Benefits Paid to Eligible Family
Members?
Social Security benefits are not suspended if a beneficiary
Under Section 202(x)(2) of the Social Security Act, benefits
is in custody at a correctional institution while awaiting
paid to eligible family members (e.g., a spouse or a
trial. Conviction must occur before an individual’s benefits
dependent child) on the basis of an incarcerated individual’s
are suspended. See SSA’s POMS, Section GN 02607.200:
work record continue to be paid as though the incarcerated
Special Legal Considerations for Prisoner Suspensions, at
individual were receiving benefits.
https://secure.ssa.gov/apps10/poms.nsf/lnx/0202607200.
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Social Security: Are Benefits Paid to Incarcerated Individuals?
If there is no prerelease agreement, the individual must
contact SSA to notify the agency of his or her anticipated
Congress first enacted restrictions on the payment of
release date. The individual must also notify SSA when he
Social Security benefits to incarcerated individuals in
or she is released and provide official prison release
1980, and the restrictions were expanded over time.
documents.
Under current law, stated generally, Social Security
benefits are suspended when a beneficiary is convicted
See SSA Publication No. 05-10133, What Prisoners Need
of a criminal offense and sentenced to a period of
to Know, and SSA Publication No. 05-10504, Re-entering
confinement in a correctional facility or institution.
the Community After Incarceration—How We Can Help.
Based on that conviction, the individual must remain
confined for more than 30 continuous days. Other
circumstances of confinement also result in the
What Happens to Benefit Payments
suspension of Social Security benefits, as outlined in
When an Individual Is Released?
Generally, benefits that are withheld during a period of
Section 202(x)(1)(A) of the Social Security Act.
incarceration are not paid when the individual is released.
(For an exception, see the following section.)
How Does SSA Know When a
Beneficiary Is Incarcerated?
Going forward, benefits can be reinstated starting with the
Under Section 202(x)(3)(A) of the Social Security Act,
month following the month of the individual’s release (if
federal, state, and local government agencies must provide
the individual continues to meet all of the requirements for
to SSA, upon written request, the name and Social Security
benefit receipt). For example, if the individual is released in
number of any individual incarcerated under the agency’s
June, his or her benefits can be reinstated starting in July.
jurisdiction if the Social Security commissioner requires the
Under SSA’s retrospective payment system, the benefit due
information to carry out the provisions of Section 202(x) of
for July is payable in August. See SSA’s POMS, Section
the Social Security Act.
GN 02607.840: Retirement, Survivors, and Disability
Insurance (Title II) Reinstatement Policies for Prisoners, at
In addition, Section 202(x)(3)(B)(i) of the Social Security
https://secure.ssa.gov/apps10/poms.nsf/lnx/0202607840.
Act authorizes an Incentive Payment Program in which
SSA and institutions enter into voluntary agreements to
What Happens to Benefits That Were
identify incarcerated individuals who are receiving Social
Withheld If an Individual Is Exonerated?
Security benefits. State and local correctional and mental
Under Section 202(x)(1)(B)(iii) of the Social Security Act,
health institutions provide information to SSA on a monthly
benefits withheld during a period of incarceration are paid
basis concerning incarcerated individuals. SSA pays the
if (1) “a court of competent jurisdiction has found the
institution up to $400 for each individual whose Social
individual not guilty of the criminal offense, dismissed the
Security benefits are suspended based on the information
charges relating to the criminal offense, vacated the warrant
provided by the institution. For an incentive payment to be
for arrest of the individual for the criminal offense, or
made, SSA must receive the information within certain time
issued any similar exonerating order (or taken similar
limits. See SSA’s POMS, Section GN 02607.800: SSA’s
exonerating action),” or (2) “the individual was erroneously
Title II and Title XVI Incentive Payment Programs, at
implicated in connection with the criminal offense by
https://secure.ssa.gov/apps10/poms.nsf/lnx/0202607800.
reason of identity fraud.”
How Does SSA Know When a
SSA Resources
Beneficiary Is Released?
SSA provides a variety of resources on its website. See
Some institutions have a prerelease agreement with the
Benefits After Incarceration: What You Need to Know at
local Social Security office. The agreement may be an
https://www.ssa.gov/reentry/benefits.htm. This webpage
informal oral agreement or a written agreement signed by
provides links to SSA publications, frequently asked
both parties. In general, the purpose is to streamline the
questions, and links to other (non-SSA) websites that
process for starting or re-starting benefits so that payments
provide a range of information for incarcerated individuals.
can begin as soon as possible after the individual is
released. If there is a prerelease agreement, a representative
Dawn Nuschler, Specialist in Income Security
for the institution (or the individual) can initiate contact
with SSA before the individual’s scheduled release date.
IF12138
Among other responsibilities, the institution notifies SSA
when the individual is released.

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Social Security: Are Benefits Paid to Incarcerated Individuals?

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