Social Security Protection in the United States

Social Security Protection Act of 2004

On March 2, 2004, the President signed the Social Security Protection Act of 2004 into law. The Bill known as H.R. 743 was then Public Law 108-203. Some relevant provisions include the
following:

• New protections for recipients who receive benefits through representative payees;
• Expansion of “fleeing felon” bar on benefits to SSDI;
• Retroactive benefits will be excluded from resources for SSI eligibility for 9 months (before, the exclusion period was 6 months);
• SSA must give receipt to all beneficiaries who report work activity;
• Expansion of cross-program recoupment of SSDI overpayments from SSI benefits;
• Temporary extension of attorney fee withholding procedures to SSI cases;
• Demonstration project to extend fee withholding procedures to non-attorney representatives;
• Expanded student earned income exclusion;
• New SSI exclusions for education-related income and resources;
• Elimination of retrospective monthly accounting for nonrecurring income.

Protection of Beneficiaries

In relation with the Social Security Protection Act of 2004:

Representative Payees

The Act contains heightened protections for people who receive payment via the Representative Payment Program. However, the very terms of the Act immediately raise a question as to SSA’s ability to locate suitable payees given the increased risk of liability for payments made to a payee on behalf of a recipient.

In any case in which a rep payee misuses all or part of a recipient’s benefit, the Commissioner shall certify for payment to the recipient, or to the new rep payee, an amount equal to that found to be misused.

Misuse is defined as occurring in any case in which the rep payee receives payment on
behalf of the recipient and converts such payment, or any part thereof, for the use and benefit of someone other than the recipient. The Commissioner will issue further regulations on this
subject concerning a more detailed meaning of “use and benefit.”

When a “duplicate payment” is issued to an SSI recipient, that “duplicate payment” will
not be considered a resource for the 9 months beginning after the month of receipt.

Oversight of Payees

Any community organization serving as a rep payee must meet the definition of a “certified community-based nonprofit social service agency.” This is an agency which will be required to comply with regulations to be promulgated by the Commissioner and will be certified annually to receive payments on behalf of recipients. The agency must be fully bonded and licensed (should a state licensing provision exist) for this purpose. The annual certification request must include a copy of any independent audit performed since the previous certification.

Periodic Onsite Review

In addition to other reviews that the Commissioner may conduct, the Commissioner shall provide for periodic onsite reviews of any person or agency located in the U.S. that receives benefits pursuant to an appointment as a rep payee when:

• The rep payee is a person who serves 15 or more recipients,
• The rep payee is a certified community-based nonprofit social service agency, or
• The rep payee is a non-governmental agency that serves mor than 50 recipients.

The Commissioner will provide a report to Congress within 120 days of the close of each
fiscal year indicating the number of onsite reviews completed and the results of each, the number of cases where a rep payee was changed and why, the number of cases involving expedited or targeted oversight by the Commissioner based upon a report of misuse, failure to pay a vendor or similar irregularity, the number of cases in which misuse was discovered and how these cases were dealt with, and the final disposition of cases of misuse including any criminal penalties imposed.

Disqualification as a Rep Payee

Any individual convicted of offenses resulting in imprisonment for more than 1 year, or fleeing prosecution, custody, or confinement, will be disqualified from serving as a rep payee.

The Commissioner shall prepare a report to Congress evaluating whether the existing
procedures and reviews for qualification of rep payees are sufficient to enable the Commissioner to protect benefits from being misused by rep payees. The report is due no later than 270 days after enactment and shall include recommendations considered appropriate by the Commissioner.

Fee Forfeiture in Case of Benefit Misuse by Representative Payees

A “qualified organization” may not collect a fee from any individual for any month in which the
Commissioner, or a court, determines that the “qualified organization” misused all, or part, of a
recipient’s benefits. Any amount collected as a fee in such a month will be considered a part of
the total misused benefit.

Liability of Representative Payees for Misused Benefits

After a determination of misuse made by the Commissioner, or a court, that a rep payee (who is not a federal, state, or local government agency) has misused benefits, the amount of misused benefits will be treated as an overpayment to the rep payee. Upon recovering all, or any part, of the misused benefits, the Commissioner shall make payment in that amount to the recipient, or the new payee.

Authority to Redirect Payments When a Representative Payee Fails to
Provide Required Accounting

In any case in which a rep payee fails to provide a required accounting to SSA, the Commissioner, after providing notice to the payee and the recipient, shall require that the payee appear in person at a DO in order to receive payment.

Survey of Use of Payments by Representative Payees

Up to $8.5 million shall be used by the Commissioner to conduct a statistically valid survey, the purpose of which is to determine how payments made to individual, organizational and government agency payees are being managed on behalf of recipients. A report shall be submitted to Congress no later than 18 months after enactment.

Enforcement

In relation with the Social Security Protection Act of 2004:

Civil Monetary Penalty Authority with Respect to Wrongful Conversions
by Representative Payees

Any rep payee who converts benefits payments to a use that is the payee knows or should know is for a “use and benefit” other than that of the recipient shall be subject to a civil penalty of not more than $5000 for each conversion. The rep payee shall also be subject to an assessment, in lieu of damages sustained by the U.S. resulting from the
conversion, of not more than twice the amount o payments converted.

Program Protections

In relation with the Social Security Protection Act of 2004:

Issuance of Receipts to Acknowledge Submission of Reports of Changes in Work or Earnings Status of Disabled Beneficiaries

Effective ASAP, but not later than March 2, 2005, and until such time as the Commissioner implements a centralized computer file recording the date of submission of information by a disabled beneficiary (or representative) regarding a change in work or earnings status , the Commissioner shall issue a receipt to the disabled beneficiary (or representative) each time such documentation or report is submitted.
NOTE – This is the change that the Commissioner said would be implemented, without the need
for legislation, in 11/03, but was not.

Refusal to Recognize Certain Individuals as Claimant Representatives

After notice and the opportunity for hearing the Commissioner may refuse to recognize as a
representative, and may disqualify a representative already recognized, any attorney who has
been disbarred or suspended from any court or bar to which s/he was previously admitted or who has been disqualified from participating in or appearing before any federal program or agency and may refuse to recognize, and may disqualify, as a non-attorney representative, any attorney who has been disbarred or suspended. A representative who has been disqualified, or suspended, as a result the collection of a fee in excess of the amount authorized by the Commissioner shall be barred from appearing before SSA until full restitution is made to the recipient and will be considered for reinstatement only under such rules as the Commissioner may prescribe.

Criminal Penalty for Corrupt or Forcible Interference with Administration of the Social Security Act

Any individual who attempts to intimidate or impede and officer, employee, or contractor of SSA shall be fined not more than $5000 and/or imprisoned for not more than 3 years. If the offense is only committed by “threats of force” the penalty shall be no more than $3000 and/or 1 year imprisonment.

Disqualification from Payment During Trial Work Period Upon Conviction of Fraudulent Concealment of Work Activity

Upon conviction by a Federal Court that an individual concealed work activity during a period of trial work, by Providing false information as to whether the individual had earnings or the amount thereof,

Receiving disability insurance benefits while engaging in work activity under another
identity, including using another SSN, or Taking other actions to conceal work activity with intent to fraudulently secure benefits payments in a greater amount than due or when no payment is due, that individual shall not be eligible for a period of disability for any month before such conviction during which that individual was working during the TWP. The amount of benefits wrongfully received will be an overpayment and the individual will be subject to restitution, penalties, assessment, and/or fines.

This section appears to indicate that the entire period of benefits payment will be subject
to recoupment by SSA (as well as fines, etc.) should the individual be convicted by a Federal
Court of fraud.

Authority for Judicial Orders of Restitution

Any Federal Court when sentencing a defendant convicted of an offense listed above may order restitution to the victims of the offense. If the Court does not order restitution it must state on the record its reasons. Victims are listed as follows:

• Any individual who suffers a financial loss as a result of the defendant’s violation,
• The Commissioner to the extent of having made payments that should not have been
  made, or
• The individual having suffered a loss while acting in the capacity of a rep payee.

The amounts collected by the Commissioner in this manner must be deposited into the
Trust Fund or deposited into the General Fund of the Treasury or paid to individuals suffering loss as described above.

Cross-Program Recovery of Overpayments From Benefits

When the Commissioner determines that an individual has been overpaid, s/he may recover the amount incorrectly paid by decreasing any amount which is payable to such individual under any other program. There are limitations on cross-program recovery.

There is no limitation upon collection if the individual, or individual’s spouse, was
involved in willful misrepresentation or concealment of material information in
connection wit the amount incorrectly paid, or, the individual requests greater
withholding.

This is an expansion of before cross-program recoupment limitations that only allowed
the collection of an SSI overpayment from current SSDI benefits.

Attorney Representative Fee Payment System Improvements

Cap on Attorney Assessments

A $75 cap on the attorney fee assessment (indexed for inflation) on all fees approved by SSA and utilizing the withholding mechanism is created.

Demonstration Project Providing for Extension of Fee Withholding Procedures to Non-Attorney Representatives

The demo will be designed to determine the potential results of extending fee withholding to non-attorney representatives. The Act includes standards for the demo project.

• The representative has been awarded a bachelor’s degree from an accredited institution,
  or has been determined by the Commissioner to have equivalent qualifications derived
  from training and work experience.
• The representative has passed an examination administered by the Commissioner which tests the knowledge of the Act and the most recent developments in agency and court decisions.
• The representative has secured professional liability insurance deemed adequate by the Commissioner.
• The representative has undergone a criminal background check to insure fitness to practice before the agency.
• The representative demonstrates ongoing completion of qualified courses of continuing education (including ethics and professional conduct) in accordance with the standards to be set forth by the Commissioner.
• The Commissioner shall complete the necessary steps to have this demo in place within 1 year of enactment. Reports to Congress will be provided after 1 demo year and after the termination year (year 5).

Miscellaneous and Technical Amendments

Amendments Relating to the Ticket to Work and Work Incentives Improvement Act of 1999 include:

Expansion of Waiver Authority and Funding of Demonstration Projects

The provide for reductions in SSDI based on earnings. The Commissioner has been granted expanded waiver authority and an allowance to fund the costs of a demonstration project from administrative funds for the purpose of establishing demonstration projects for the study of the potential for reducing SSDI by earned income. Benefits paid during the project shall be paid from the Trust Fund.

Availability of Federal and State Work Incentive Services to Additional Individuals

Individuals who are “considered to be receiving” SSI benefits and those beneficiaries within their Extended Period of Eligibility will be allowed to received services from PABSS and BPAO programs.

Effective with grants, contracts entered into on or after the enactment date of this Act.

Advocacy services available to these individuals, as well as to cash recipients, for the
purpose of securing, maintaining or regaining employment.

Treatment of Education-Related Income and Resources

Student Earned Income Exclusion will apply to any individual under age 22 who is a student regardless of marital or head of household status. Gifts to the SSI recipient for the purpose of
paying tuition or other education-related fees and expenses will be excluded from income
consideration. Resources for education-related purposes will be excluded from resource
counting for 9 months if provided by a grant, scholarship, fellowship or gift for the cost
of tuition and fees.

Source: Ray Cebula