TN 38 (09-13)

Citations:

Social Security Act § -- Section 1611(e)(1)(A)

Regulations 20 CFR -- 416.201 and 416.211

A. Introduction to penal institutions

Most prisoners are incarcerated in jails or prisons (which in most cases are public institutions) and are not eligible for Supplementary Security Income (SSI).

The definition of an institution and the policies for determining residence in a public institution (which include penal institutions) are in SI 00520.001B.

Many penal jurisdictions have been developing innovative approaches to incarceration, sometimes raising a question as to whether a prisoner is incarcerated in a public institution for SSI purposes. This section provides guidance on how to determine whether an individual residing in one of these alternative settings is a resident of a public institution.

B. Policy on alternative types of incarceration

1. Privately operated prisons

In some cases, a private contractor operates a prison or jail under contract to Federal, State, or local penal authorities. Treat a private facility that is acting as an agent of Federal, State, or local penal authorities as a public institution for SSI purposes.

An institution is an agent when it is acting on behalf of, and with the authorization of Federal, State, or local penal authorities and is accountable to the governmental unit (i.e., is acting in the place of a governmental unit).

For a discussion of public vs. private institutions, see SI 00520.001C.2.

2. Home confinement

A prisoner may be confined in a private home, usually, but not always, his or her own home. Although the specifics of home confinement programs vary, they generally involve monitoring the individual’s whereabouts and some degree of restriction on the individual’s freedom of movement. Home confinement programs usually require participants to pay their own living expenses.

A private home cannot be an institution. A beneficiary who is a prisoner confined to a private home is FLA-A, FLA-B, or FLA-C, depending on the circumstances. See Federal Living Arrangement Codes, SM 01301.525.

3. Halfway houses

In privately operated halfway houses or similar facilities, the prisoner typically may leave the facility during the day (e.g., to work) but is required to be confined at night.

The prisoner may be required to pay for food and shelter, or Federal, State, or local penal authorities may be responsible, either directly or through arrangements made with a third party.

A privately operated halfway house that meets the definition of an institution is treated as a public institution only when it is acting as an agent of the correctional authorities.

A facility that has the authority to physically confine offenders all or part of the time is acting as an agent of Federal, State, or local penal authorities.

4. Juvenile treatment centers

Privately operated juvenile treatment centers are facilities that house young offenders who are being treated for various emotional problems. Treat a private treatment center as a public institution only when it is acting as an agent of Federal, State, or local penal authorities.

C. Policies for evaluating alternatives to incarceration

Consider the following policies when determining whether an alternative form of incarceration should be treated as a public institution.

1. Resident of a public penal institution

An individual who is a resident of a public penal institution throughout a month is ineligible for SSI. Absent evidence to the contrary, assume that a traditional penal institution (e.g., prison, jail) is a public institution.

2. Privately operated prisons and jails acting as an agent

Consider a privately operated prison or jail to be acting as an agent of Federal, State, or local penal authorities and treat the facility as a public institution for purposes of determining SSI eligibility. For information about acting as an agent, see Residence in an Institution, SI 00520.001C.2.

3. Public versus private status

When evaluating an alternative form of incarceration that is not in a prison or jail, it is necessary to determine whether the facility is an institution, and whether it is a public (governmental) or private entity. Follow the instructions for evaluating public versus private status in SI 00520.001C.2. Be alert for situations where a private entity is acting as an agent of Federal, State, or local penal authorities.

4. Agent’s authority to confine prisoners

Whether a prisoner in a private facility is actually locked up all or part of the time is important only as it relates to whether the facility is acting as an agent of a public institution. A private facility that has the legal authority to physically confine (lock up) a prisoner to the premises, is acting as an agent of Federal, State, or local penal authorities. A policy that provides that a resident must return to the facility when scheduled or risk being sent back to jail or prison is not authority to confine.

5. Provision of food and shelter by Federal, State, or local penal authorities

The provision of food and shelter by a penal authority is an important factor in determining whether an individual is a resident of a penal institution. By this, we mean that the facility makes substantially all food and shelter available:

• whether or not it is used; and

• whether or not the resident pays.

A resident of an institution is defined as someone who can receive substantially all of his or her food and shelter while living there (see SI 00520.001B.5.). The prisoner is not a resident of an institution if the facility does not make both food and shelter available, either directly or indirectly.

D. Policy on absences from penal institutions

1. Authorized absences

Ineligibility because of residence in a public institution continues during periods of authorized absence from a penal institution. Authorized absences include temporary or intermittent releases, such as furloughs, leaves, passes, and emergency visits.

NOTE: Furloughs can take a variety of forms. Consider the facts of each particular case when making a determination. If you encounter an unusual furlough situation without a precedent, you may need to refer the case to your regional office (RO) for assistance. When in doubt, discuss the issue with RO staff.

Authorized absences also include periods of participation in some alternatives to traditional incarceration where the provision of food and shelter (or the arrangement for such provision) remains the responsibility of the penal authorities.

Examples of such situations are:

• prisoners who are sent to work on farms on a seasonal basis;

• boot camp programs;

• daily work release programs that allow individuals to work in the community during the day, but require them to return to the penal institution at night; and

• periods as an inpatient in facilities such as hospitals and nursing homes, even if Medicaid is paying over 50 percent of the cost of care.

2. Unauthorized absences

An individual is ineligible for SSI during periods of unauthorized absence from a penal institution (e.g., escape).

E. Provisions that do not apply to residents of penal institutions

The following provisions do not apply to residents of penal institutions:

• 14-Day Temporary Absence Rule (SI 00520.001B.7. and SI 00520.001C.4.)

• Employees of Institutions (SI 00520.010A.1. and SI 00520.010A.2.)

• Levings Decision—Eighth Judicial Circuit (SI 00520.120C.1.a.)

• Special Benefits for Institutionalized 1619 Eligibles (SI 00520.130B.3.)

• Temporary Institutionalization (TI) Benefits (SI 00520.140B.1.)

• Educational/Vocational (ED/VOC) Training (SI 00520.400C.2.b.)

• Publicly Operated Community Residence (POCR) (SI 00520.500C.2.a.)

• Resident of a Public Emergency Shelter for the Homeless (PESH) (SI 00520.600C.3.)

F. Examples of alternative forms of incarceration

EXAMPLE 1: Home Confinement

John, who is receiving SSI disability benefits, is convicted and sentenced to three months home confinement in his own home where he lives alone. Although he is not allowed to leave home at all, even to seek work, the Bureau of Prisons does not pay his rent and the cost of his food.

Determination: Because a private home cannot be considered an institution, John is not considered to be a resident of a public institution and would not be N02 or N22. John is in FLA-A. For a list of SSI payment status codes, see “Payment Status Codes” (SM 01305.001).

EXAMPLE 2: Halfway House

Sam is convicted of a non-violent crime but the law mandates a minimum of one-year incarceration. After serving six months, he is transferred to a private facility designed to transition non-violent criminals back into the community. The prisoners are allowed to leave the facility during the day to work or seek employment but are confined behind locked doors at night. If they find work, they will pay all or part of the $20 daily food and shelter charge, depending on the amount of their verified income.

Determination: The correct determination in this situation is N22. Since the facility has the authority to lock up the prisoners at night, we know it is acting as an agent of the penal authorities. Even if Sam finds a good job and pays all of the cost of his food and shelter, he is still N22 because as long as he is at the facility, the facility will provide food and shelter even if he stops paying.

EXAMPLE 3: Treatment Facility

Jimmy, a 20-year old, is convicted of his third offense of stealing a car. After a psychological examination and a background check, a decision is made to place him in a private treatment center for emotional and developmental problems. The residents' treatment plans stipulate that they should not leave the facility, but they are not physically confined. The facility is a private entity that is being paid by the prison system to provide care and treatment for Jimmy. Contact with the facility reveals that the prison system does not exercise any administrative or fiscal control over this facility and that none of the facility’s staff are government employees. It is not licensed as a medical treatment facility for purposes of Medicaid coverage, so the $30 payment limit (FLA-D) cannot apply.

Determination: Jimmy is FLA-A. N02 or N22 is not the correct determination because Jimmy is not in a public institution and there is no indication that the facility is acting as an agent of the prison. The value of the food and shelter provided to Jimmy is ISM under the presumed maximum value (PMV) rule. The ISM is countable because payment by the prison system for his food and shelter is a result of the sentencing process and is not considered a social service. (For information about medical and social services, see SI 00815.050.)