TN 43 (04-16)

A. Individuals with Criminal History Barred from Serving as Representative Payee

1. Policy for individuals convicted under Sections 208, 811, or 1632(a) of the Social Security Act

Individuals convicted under Sections 208, 811, or 1632(a) of the Social Security Act cannot serve as payee. Never appoint these individuals to serve as representative payee. There are no exceptions.

2. Policy for individuals considered fugitive felons

Section 103 of the Social Security Protection Act (SSPA) of 2004 provides that, effective April 1, 2005, fugitive felons are prohibited from serving as payees. Based on the settlement agreement reached in the Martinez et al. v. Astrue court case, effective April 1, 2009, a person is considered a fugitive felon and cannot serve as payee if he or she has an unsatisfied felony warrant for one of the following three offenses:

• escape from custody (offense code 4901);

• flight to avoid prosecution, confinement, etc. (offense code 4902); and

• flight-escape (offense code 4999).

There are no exceptions to this prohibition; however, it only applies while the person has an unsatisfied felony warrant with offense codes 4901, 4902, or 4999. Once the warrant is satisfied, the individual may serve as a representative payee, unless other prohibitions exist. Even if the individual satisfied the warrant, you must carefully consider the nature of the crime and other relevant factors before selecting the individual as payee. You should not appoint the individual as payee if you determine that he or she may pose some risk to the beneficiary.

NOTE: The representative payee fugitive felon provisions violators do not include parole or probation violators or extend good cause to those who are fugitive felons with offense codes of 4901, 4902, or 4999.

3. Policy for RP committed RP related fraud

Individuals convicted of RP related fraud means the person was convicted of fraud directly related to his or her representative payee duties. These crimes appear on an Office of the Inspector General (OIG) list and appear in the Electronic Representative Payee System (eRPS) as a remark. Do not appoint a representative payee applicant who has committed representative payee related fraud. There are NO exceptions to this rule including parents, spouses, grandparents, and guardians with custody.

4. Policy for individuals convicted of other crimes barring them from being a payee

SSA bars an individual convicted of any of the following felonies or an individual convicted of attempt or conspiracy in connection with the following felonies from serving as a representative payee unless the individual:

• is the custodial parent of the minor child for whom the individual applies to serve;

• is the custodial spouse of the beneficiary for whom the individual applies to serve;

• is the custodial parent of a disabled adult child for whom the individual applies to serve;

• is the custodial court appointed guardian of a beneficiary for whom the individual applies to serve;

• is the custodial grandparent of the minor grandchild for whom the individual applies to serve;

• is the parent who was previously payee for his or her minor child who has since turned 18 and continues to be eligible for benefits; or

• received a presidential or gubernatorial pardon for the conviction.

The felony crimes that bar certain applicants from serving as a payee are:

a. Human Trafficking

Human Trafficking is the act of recruiting, transporting, transferring, harboring, or receiving a person through a use of force, coercion or other means, for the purpose of exploiting the person.

b. False Imprisonment

False imprisonment is the illegal confinement of one individual against his or her will by another individual in such a manner as to violate the confined individual’s right to be free from restraint of movement.

False imprisonment often involves physical force but such force is not always required. The threat of force or arrest, or a belief on the part of the person being restrained that force will be used, is sufficient.

c. Kidnapping

Kidnapping is the unlawful and non-consensual seizure of a person for the purpose of gaining a ransom or reward, facilitating the commission of a felony or a flight after the commission of a felony, terrorizing or inflicting bodily injury on the victim or a third person, or interfering with a government or political function.

d. Rape and Sexual Assault

Definitions of rape or sexual assault are:

• Rape is a type of sexual assault usually involving sexual intercourse, initiated by one or more persons against another person without that person’s consent. The act may be carried out by physical force, coercion, abuse of authority, or with a person who is incapable of valid consent.

• Sexual assault is an involuntary sexual act in which a person is threatened, coerced, or forced to engage in a sexual act against his or her will, or any sexual touching of a person who has not consented. This includes rape, inappropriate touching, forced kissing, child sexual abuse, or the torture of the victim in a sexual manner.

e. First-Degree Homicide

First-degree homicide is an unlawful killing that is both willful and premeditated, meaning that it was committed after planning or “lying in wait” for the victim.

f. Robbery

Robbery is theft or larceny of property or money through the offender’s use of physical force or fear against the victim. Where a deadly weapon such as a gun is used or the victim suffers injury. The robbery may be “armed” or “aggravated.” Unlike burglary, the crime of robbery requires the presence of a victim who suffers actual injury, or threatened with harm.

g. Fraud to obtain access to government assistance

Fraud to obtain access to government assistance is intentional misrepresentation, concealment, or withholding of information in order to get any, or increased, public assistance or food stamp benefits.

If someone intentionally signs any papers (application for benefits, questionnaire, or recertification papers) in which the information in the papers is not true, they have committed fraud. This is true even if they never end up receiving any public assistance or food stamps at all.

h. Fraud by scheme

Fraud schemes typically include three major elements: fraud objective, fraud method, and execution. Some common fraud schemes are:

• Telemarketing fraud;

• Investment-related scams;

• Internet scams;

• Credit card fraud;

• Counterfeit prescription drug; and

• Reverse mortgage scams.

i. Theft of Government Funds/Property

Theft of government funds/property is an act by which an individual embezzles, steals, misappropriates, or knowingly converts to his or her use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof. This offense also applies to someone who receives, conceals or retains the same with intent to convert it to his or her use or gain, knowing it to have been embezzled, stolen, misappropriated, or converted.

j. Abuse or Neglect

Abuse or neglect is any act or failure to act on the part of a parent, caretaker or spouse that results in death, serious physical or emotional harm, sexual abuse or exploitation, or an act or failure to act which presents an imminent risk of serious harm.

k. Forgery

Forgery is the act of making, drawing or altering a document in order to deceive people. This includes filling in blanks on a document containing a genuine signature, or materially altering or erasing an existing instrument. Instruments may include bills of exchange, promissory notes, checks, bonds, receipts, mortgages, deeds, public records, account books, and tickets or passes for transportation or events. An underlying intent to defraud, based on knowledge of the false nature of the instrument, must accompany the Act.

l. Identity Theft or Identity Fraud

Identity theft or identity fraud, refer to all types of crime in which someone wrongfully obtains and uses another person’s personal data in some way that involves fraud or deception, typically for economic gain. Personal data may include a social security number, bank account or credit card number, telephone calling card number or other valuable identifying information that someone can use for profit.

A digest of State or Territory felony crimes associated with these barred crimes is located in GN 00502.301.

NOTE: If an individual is currently serving as payee and you discover he or she was convicted of one of these crimes, and he or she is not an exception as listed in GN 00502.133A.4 in this section, you must remove him or her as payee and develop for a new payee or consider direct payment to the beneficiary.

For information on determining capability for adult beneficiaries, see GN 00502.020.

For information on determining capability for children, see GN 00502.070.

For information on direct payment prohibitions, see GN 00502.005.

For information on documenting your determination, see GN 00502.132B.2.

5. Policy for representatives or healthcare providers barred under section 1136

Section 1136 of the Social Security Act indicates a representative or a health care provider assessed with a Civil Monetary Penalty under section 1129(a)(1) of the Social Security Act or convicted of certain violations under Title XVIII of the United States Code may not participate in Social Security programs and therefore may not serve as a representative payee. The violations under Title XVIII of the United States Code relate to the following:

• Initial application for benefits;

• Continuing entitlement to benefits;

• Amount of benefits under Title II or Title XVI.

B. Procedure for Prohibiting an Applicant from Serving as a Payee

1. Felony under sections 208, 811, or 1632(a)

Sections 208, 811, or 1632(a) of the Social Security Act define and provide penalties for Social Security fraud. Crimes described in these sections are felonies and include:

• making any false statement or representation about earnings, factors of entitlement to or payment of benefits and factors in determining disability;

• concealing knowledge of events affecting entitlement to or payment of benefits;

• misuse of benefits;

• Social Security number fraud; and

• violation of disclosure laws.

When taking an application in eRPS, you will get the alert message “RP convicted under Sec 208/811/1632.” This remark indicates the applicant was convicted under one or more of these statutes. If you receive this remark, take the following actions in the order below:

• complete the payee application;

• non-select this applicant on the Selection-Decision screen (MS INTRANETERPS 012.002);

• use “Other barred crime” as the reason for non-selection on the Non-Select Applicant screen (MS INTRANETERPS 012.003);

• Check box to send non-select notice to applicant and;

• find a new (more suitable) payee candidate or consider direct payment, if appropriate.

If the applicant leaves before attesting to the application, use the Rep Payee Applicant “Note Type” on the Make Note screen to document the circumstances of the interview and your findings regarding criminal history and use “incomplete” as the non-select reason.

eRPS will not allow you to select an applicant with these violations. If the applicant insists the information is incorrect, contact your Regional Office.

REMEMBER: The Social Security Act prohibits anyone from serving as payee if he or she was ever convicted of a violation under section 208, 811, or 1632(a). This prohibition is permanent; that is, if an individual was ever convicted under one of these statutes, he or she is barred from serving as payee for life. There are no exceptions to this rule.

2. Representative payee with an unsatisfied felony warrant

If during the application process, the applicant responds that he or she has an unsatisfied felony warrant take the following action in the order below:

• Determine if the warrant is for offense code 4901, 4902, or 4999;

• Non-select applicants with such warrants on the Selection-Decision screen (MS INTRANETERPS 012.002);

• Use “Other barred crime” as the reason for non-selection on the Non-Select Applicant screen (MS INTRANETERPS 012.003);

• Check box to send non-select notice to applicant and;

• Find a suitable payee candidate or consider direct payment if appropriate.

If the applicant leaves before attesting to the application, use the Rep Payee Applicant “Note Type” on the Make Note screen to document the circumstances of the interview and your findings regarding criminal history and abate the application.

If the offense is for something other than codes 4901, 4902, or 4999, you must determine whether this is a viable applicant, despite his or her criminal activity.

If the applicant alleges misunderstanding the question or providing an incorrect response, update the application with the correct response (while the application is still pending). If the applicant states that the warrant is satisfied or if the warrant is for an offense other than 4901, 4902, or 4999, obtain the appropriate documentation. For information on proof a warrant is satisfied see GN 02613.500A.2.

3. Representative Payee committed Representative Payee related fraud (RP committed RP related fraud)

When taking an application in the eRPS, you may get a remark, “RP committed RP related fraud.” This remark advises you that the applicant was convicted of fraud directly related to his or her representative payee duties such as:

• Misuse;

• conversion of benefits;

• perjury; and

• theft;

If you see this remark, take the following actions in the order below:

• Non-select this applicant on the Selection-Decision screen (MS INTRANETERPS 012.002);

• Use “Other barred crime” as the reason for non-selection on the Non-Select Applicant screen (MS INTRANETERPS 012.003);

• Check box to send non-select notice to applicant and;

• Use the Rep Payee Applicant “Note Type” on Make Note screen (MS INTRANETERPS 015.002) to document indicating that we bar the applicant from serving as a payee; and

• Find a new (more suitable) payee candidate or consider direct payment, if appropriate.

If the applicant leaves before attesting to the application, use the Rep Payee Applicant “Note Type” on the Make Note screen to document the circumstances of the interview and your findings regarding criminal history and use “incomplete” as your non-select reason.

This prohibition is permanent; that is, if an individual was ever convicted under one of the above crimes related to RP fraud, SSA bars him or her from serving as payee for life. There are no exceptions to this rule. If the applicant insists the information is incorrect, contact the Regional Office (RO).

4. Payee applicant convicted of other crimes barring him or her from being a payee

If during the application process, you discover SSA barred the applicant from serving as payee because he or she was convicted of any of the twelve crimes, as described in GN 00502.133A.4 in this section, take the following steps to “non-select” the payee applicant in the order below:

• Complete the payee application process (taking the application, printing the application and, having the applicant attest);

• Non-select this applicant on the Selection-Decision screen (MS INTRANETERPS 012.002);

• Select “Criminal Policy” as the non-selection reason on the Non-Select Applicant screen (MS INTRANETERPS 012.003);

• When you select “Criminal Policy”, a list of the 12 barred crimes will appear. Select the appropriate barred crime;

• Find a suitable payee candidate or consider direct payment, if appropriate.

If the applicant leaves before attesting to the application, use the Rep Payee Applicant “Note Type” on the Make Note screen to document with the circumstances of the interview and your findings regarding criminal history and use “incomplete” as your non-select reason.

The following are examples of possible situations that you may encounter. In each of these situations, SSA barred the payee applicant from serving as payee.

• Example 1

  Matt comes into the local field office (FO) to become payee for his neighbor and friend whom he has known for over 20 years. During the application process, Matt answers yes to being in prison for more than one year. He also answers yes to the felony conviction question. You question him about the felony conviction and the prison time. Matt explains in 1970 he received an armed robbery conviction and served 5 years in prison. Matt cannot serve as payee for his neighbor because he was convicted of one of the barred crimes in GN 00502.133A.4 in this section and does not meet one of the exceptions.

• Example 2

  Jane is currently payee for two unrelated individuals. She comes in the local FO to become payee for her aunt, who has Alzheimer’s, and now lives with her. During the application process, Jane answers yes to the felony conviction question. She explains her conviction was from committing forgery to pass a series of bad checks. SSA bars Jane from serving as payee for her aunt.

  Furthermore, since the field office became aware of Jane’s criminal history, the field office will remove her as payee for the two unrelated individuals. The field office will need to find a new payee or determine if the beneficiary is capable and can be paid directly. Jane can no longer serve as payee and cannot be selected as payee because she was convicted of one of the barred crimes in GN 00502.133A.4 in this section and does not meet one of the exceptions.

• Example 3

  Joe is the custodial court-appointed legal guardian for his mother and currently serves as his mother’s payee. He comes in to the local field office to become payee for his niece, who recently moved in with him. Prior to interviewing Joe, you retrieve a PUPS query and discover he was in prison for 1 year from 1997 to 1998. During the application process, you discuss the prison history with Joe. He explains his conviction was from filing a fraudulent food stamps application. SSA bars Joe from serving as payee for his niece because he does not meet the exceptions in GN 00502.133A.4 in this section; however, he may continue to serve as payee for his mother because he is her custodial court appointed legal guardian which is one of the exceptions.

• Example 4

  George comes in to the FO to become payee for his wife, who recently went into a nursing home due to Alzheimer’s. During the application process, you conduct a criminal background check on George using PayeeWiz. You notice he received a sexual assault conviction 40 years ago. You question George about his conviction and he indicates he was convicted of the sexual assault during his first year of college. George cannot serve as payee for his wife because he was convicted of a crime listed in GN 00502.133A.4 in this section and does not meet one of the exceptions.

5. Representatives or healthcare providers barred under section 1136

If you receive information on a representative or healthcare provider convicted of any violation under Title XVIII of the United States Code contact your regional office. The RO should contact CO for further processing instructions.

C. Policy for individuals with criminal history not barred from serving as payee

1. Applicants who have past criminal behavior (other than those listed in GN 00502.133A):

If you have information that a payee applicant has a history of criminal behavior (self-reported, PayeeWiz criminal tab or otherwise), carefully consider this information when making the payee determination. Any history of criminal behavior casts serious doubt on the character of the applicant. When deciding whether to appoint the individual as a payee, you must consider the following:

• the type of crime;

• when the crime was committed;

• the relationship of the applicant and the beneficiary; and

• who has custody of the beneficiary.

Minor crimes or crimes that occurred many years ago may have limited impact on your determination. Crimes that occurred recently suggest a much more significant risk to the beneficiary.

EXAMPLE: John, a 40-year old wage earner, files to be payee for his mother who lives with him. He advises us that he received a felony conviction for stealing a car when he was 18. After you conduct a criminal background check on John using PayeeWiz, you do not see any further criminal history. The conviction for stealing a car 22 years ago does not appear to indicate that he is likely to misuse his mother’s benefits. You may select John as payee if he is the best choice.

Do not appoint someone with a criminal past, unless:

• you determine there is no more suitable payee available;

• the applicant does not pose a risk to the beneficiary; and

• he or she will act in the best interests of the beneficiary.

Use the Rep Payee Applicant “Note Type” on the Make Note screen to document in the eRPS with the reasons for your decision. If you determine the applicant would not be a good payee, non-select the applicant and document your decision on the Make Note screen. (MS INTRANETERPS 015.002)

D. Process for monitoring representative payees

To monitor current payees, SSA receives current criminal information from OIG and law enforcement agencies. This information is either posted to the eRPS (i.e., sec 208/811/1632 – Representative Payee Related Fraud violations) or matched against the eRPS. If a payee is convicted under section 208/811/1632 or has a conviction for RP related fraud the regional office will notify the field office. The field office must remove the current payee and develop for a new payee or consider direct payment to the beneficiary. If there is a PUPS or Fugitive Felon match against the eRPS, the local field office receives an alert so that we can initiate a continued suitability investigation. When you review a negative remark, receive an alert, or learn of questionable history, consider all this information before making your decision about the continued suitability of the payee.

If an individual is currently serving as payee and you discover he or she was convicted of any of the twelve crimes listed in GN 00502.133A.4. in this section, you must remove him or her as payee. Develop for a new payee or consider direct payment to the beneficiary, unless the payee meets one of the exclusions listed in GN 00502.133A.4. in this section. For information on determining capability for adult beneficiaries, see GN 00502.020. For information on determining capability for children, see GN 00502.070. For information on direct payment prohibitions, see GN 00502.005.

NOTE: Any time you select (or continue payment to) a payee in spite of a questionable information indicator, you must document reasons for your decision, use the Rep Payee Applicant “Note Type” on the Make Note screen to document in eRPS.

E. References

• GN 02613.500 Reinstating Benefits

• GN 00502.020 Determining Capability-Adult Beneficiaries

• GN 00502.070 Developing Capability-Children

• MS INTRANETERPS 010.003, FUGFEL Crime Record Listing screen

• MS INTRANETERPS 010.004, PUPS Crime Record Listing screen

• MS INTRANETERPS 010.005, Criminal Warrant Questions screen

• MS INTRANETERPS 010.006, OIG Fraud Direct Screen