TN 34 (06-07)

A. Background

Cases involving foster care are among the most sensitive SSA encounters. It is essential that SSA do all it can to protect the rights of children who may not be able to rely on their parents to do so.

It is extremely important that SSA follow all legal requirements, including conducting a complete investigation of the individual or organizational representative payee applicant, using the payee preference list appropriately to identify when other payee leads should be developed and providing due process to the child’s parent and/or legal guardian (see GN 00502.159B).

Foster care agencies have traditionally been among SSA’s most dependable payees; however, their appointment as rep payee is not automatic. You must decide each case individually and remember to consider other concerned relatives as possible payee choices.

B. Policy

Each case should be decided on its own merits. Your primary concern must be that the person, agency or organization you select as payee will best serve the interest of the child. In the absence of a parent, be sure to consider whether other concerned relatives are a better payee candidate. SSA has several policies to help you find the best possible payee.

1. Use of the Payee Preference List

The payee preference list, provided in GN 00502.105B., is a developmental guide designed to help you identify the best potential payee. An agency that has been appointed legal guardian for the child by the court has a much higher standing on the payee preference list than an agency that has not been appointed legal guardian because the relationship between a court appointed legal guardian and child is stronger than merely a custodial relationship.

If the agency has not been appointed legal guardian, you must use the payee preference list as an aid to identify and develop potential payees who would better serve the interests of the child.

In the case of a parent who is barred from having contact with the child or has had parental rights terminated, do not consider the parent higher than the agency on the preference list. The court decision barring the parent’s contact with the child or terminating parental rights indicates that the parent would NOT better serve the interest of the child and the parent should not be considered a potential payee.

2. Custody

When a child is removed from parental custody and the court places the child in the custody of a foster care agency, the agency has legal custody of the child. If the foster care agency places the child into a foster care or group living household, the foster care agency retains legal custody of the child, even though the agency does not have actual physical custody of the child.

3. Guardianship Issues

While a child might be placed in foster care under a court order, the order does not necessarily make the agency the legal guardian of a child in foster care. The court has to specifically name the agency as the legal guardian. You must carefully review the court documents to determine the legal relationship between the child and the foster care agency.

Remember, even when the agency is the legal guardian, you are not requiredto appoint the legal guardian as the payee (GN 00502.139).

4. Applications and Selection

a. Foster Care Agency or Foster Parent?

Generally, the foster care agency is preferred as payee rather than the foster parent because the agency is legally responsible for the child, not the foster parent.

b. Child is Voluntarily Placed in Foster Care

In instances where the child is placed voluntarily (by the parent) under the supervision of a foster care agency, it may be in the child’s best interests to appoint the child’s parent as payee.

c. Other Potential Payee Sources

While the foster care agency has custody and may be legally responsible for the child, there may be other concerned relatives who would be better choices as payees. Relatives with close ties to the child might be better able to make more balanced choices regarding use of the child’s benefits.

5. Advance Notice - Due Process

It is a legal requirement that we provide advance notice about the payee appointment to the proper persons. The parents (or legal guardian) of a child in foster care must be provided advance notice of the appointment unless their parental rights were terminated by a court.

C. Procedure

During the payee application, gather and consider all pertinent information including copies of all appropriate court documents. A certified copy is required for a court decision of legal incompetence. Photocopies are acceptable for any other documents.

1. Investigate the Individual Situation

When you select a payee for a child in foster care, exercise caution and follow proper procedures to ensure we appoint the best payee available and provide appropriate due process. Do not routinely appoint the foster care agency as payee for a child in foster care. Gather all pertinent information and make a thoughtful and careful choice and decide each case on its own merit. Use the Rep Payee Applicant “Note Type” on the Make Note screen to document (MS INTRANETERPS 015.002) in eRPS the following information:

• Why was the child placed in foster care?

• Has the court given the agency legal custody?

• Has a court appointed the agency legal guardian?

• Does the child have a living parent? If so, have parental rights been terminated?

• Are there other family members who provide support and show concern for the child?

2. Use the Payee Preference List (GN 00502.105B)

If there is a payee candidate higher than the agency on the payee preference list, contact that person and document why they are or are not interested in filing as payee before appointing the agency. However, do NOT contact a parent who the court has barred from having contact with the child or who has had parental rights terminated. Review the court document to determine whether the parent is barred from having contact with the child or has had parental rights terminated.

Consider whether, in the absence of a parent, other concerned relatives are a possibility.

3. Custody

Follow the instructions in GN 00504.100B.6. when the child has been voluntarily placed in foster care. Contact the current payee. Develop all the facts of the case before making a determination.

SSA is required by law to maintain the current residence address of our beneficiaries even when the foster care agency has legal custody of the child. When completing the Custodian screen (MS INTRANETERPS 009.006), answer the “Do you have physical custody?” question “NO” and record the actual residence address of the child on the Claimant/Beneficiary address screen (MS INTRANETERPS 009.015). Remind the payee applicant they must notify SSA and provide us the new resident address each time the child moves. Enter the residence address in eRPS and if a T-16 case on the SSR. (See GN 00501.010B.9. for custody definitions.)

4. Guardianship

If there is an allegation of guardianship, obtain a copy (photocopy sufficient) of the court order/appointment. Use the Rep Payee Applicant “Note Type” on the Make Note screen (MS INTRANETERPS 015.002) to document pertinent information contained in the court documents as shown in the example below:

On January 3, 2007, I reviewed the court order giving the DSS legal guardianship of John Brown. It was issued by the (name of court) on MMDDYY. It stated John was removed from his parents due to continued abuse and that parental rights have been terminated. (your name/initials/FO code)

You do not need to keep the court documents once you have documented the information in eRPS.

CAUTION: Only record information on the Make Note screen that is specific to the representative payee applicant. Otherwise, the information may not be retrievable if there is a payee change.

5. Application and Interview

Ensure that the foster care agency answers all pertinent questions during the payee application process via the eRPS. Make sure they tell you whether the child has a living parent or other interested family member. If they answer “no” (or they do not know) to the parent question, review all court documents obtained, the MBR/SSR and/or case file to determine if we have any record of a parent or other family member.

When interviewing the representative of the foster care agency, take the time to fully discuss their payee responsibilities (GN 00502.113.D.) including:

• using and saving the money for the child’s benefit;

• filing annual accounting reports;

• reporting changes (including adoptions and custody changes) which affect the beneficiaries’ eligibility and benefit amount;

• record keeping; and

• returning conserved funds.

6. Selection of Payee

Do not assume the parent is “not qualified” just because the child has been placed in foster care. Consider the parent’s continued interest in the child and the probability the child will return to the parent’s custody when you make a decision.

When a child is placed voluntarily under the supervision of a foster care agency, it may be in the child’s best interest to appoint the parent as payee. Consider the importance of maintaining the family ties between the parent and child if the parent expects to regain custody of the child in the near future. Corroborate the parent’s concern with the agency. If you select the parent as payee, follow-up on the appointment as instructed in GN 00504.185 to ensure that the parent is using benefits properly.

When the foster parent of a child who has been placed in the custody of a foster care agency files to be payee, check with the agency to determine if the agency intends to file as payee. Generally, the foster care agency would be preferred as payee over the foster parent because the agency is responsible for the child.

7. Advance Notice - Due Process Issues

The parent must be provided with advance notice of the payee appointment unless parental rights have been terminated. Review the court orders and if needed, contact the court that issued the order to determine if the parent(s) have had their parental rights terminated. If parental rights have been terminated, document the file and do not send the parent(s) advance notice of the payee appointment. (See GN 00503.100E.2.)

8. Adoption Issues

Advise the agency to notify SSA if the child is adopted and have them provide the name and address of the adoptive parent so SSA can secure a rep payee application. If the agency refuses to provide the information due to privacy concerns, request that the agency notify the adoptive parent that SSA benefits are available to the child and to contact SSA to file for those benefits. Refer to GN 00504.220 for other adoption considerations.

D. Examples

1. Example 1

A minor child is temporarily removed from his mother's home due to the child's repeated delinquent behavior and is placed with the local social agency. The social agency files a SSA-11 to become payee and states the following: they have temporary custody, they have not been appointed legal guardian, the mother remains in contact with the child and continues to show strong support and interest. When you contact the mother (as required in GN 00504.100B.1.) she indicates that she wants to remain payee and plans to use the benefits for the child's current needs and save a portion of the money for the child's eventual release back to her. The CR decides that the mother should remain payee because she observes that the mother shows strong concern and will serve the best interests of the child. The decision to deny the social agency's request to be payee is further supported by the payee preference list, which indicates that under normal circumstances a parent without custody who shows strong concern is higher on the list than a social agency that is not a legal guardian. The CR denies the payee application of the social agency.

2. Example 2

A minor child is removed from his parents' home because the parents have been declared unfit. The child is placed with the local social agency that files a SSA-11 to become payee. The social agency states that they are not the legal guardian and that there are no other interested parties. Subsequently, the child's maternal grandmother visits the FO and files a request to be the child's payee. She states that while she doesn't have custody, she would use the money for the child's current needs and save the balance for the child's education. In addition, she states that she visits him on a regular basis. The FO re-contacts the social agency and confirms that the grandmother does visit and that she shows strong concern for the child. After carefully considering all of the facts in the case, the CR believes the grandmother would better serve the interests of the child and appoints her as payee.

3. Example 3

A minor child is removed from his parents' home and placed with a social agency. The social agency files to be payee and states they are not legal guardian but have custody of the child and that there are no other interested individuals. When the FO contacts the current payee who is the mother, she states she wants to remain payee and will save the money for the child. When the FO re-contacts the social agency, they indicate the mother has rarely seen the child since his placement with them and that they are anticipating a long-term placement with a foster care parent. The CR is convinced that the social agency's appointment would be in the best interests of the child and decides to make the payee change. Since the parents maintain parental rights they must be provided with advance notice. (Since the social agency is not the legal guardian, eRPS releases the advance notice.)

E. References

GN 00501.010 – Definitions of Common Representative Payment Terms

GN 00502.105 – Payee Preference Lists

GN 00503.100 – Advance Notice

GN 00504.100 – Determining the Need for a Successor Payee

GN 00504.185 – Follow-up on Certain Payee Appointments

GN 00504.220 – Adoption of a Child Beneficiary – Payee Actions