TN 32 (07-18)

A. PR 18-080 Will Military Imposed Sanctions Result in Suspension of Benefits?

Date: April 26, 2018

1. Syllabus

Colorado’s Veterans Trauma Court (VTC) provides jail diversion services to participating veterans. This program keeps veterans from imprisonment as long as they follow the program rules and terms of his or her criminal plea agreement. Do not equate VTC participation to a sentence of imprisonment that causes suspension. If a VTC participant commits an infraction, he or she suffers a sanction. A sanction varies from a reprimand to imprisonment. A sanction of imprisonment exceeding 30 or more days can cause suspension of a beneficiary’s Title II benefits. However, you must evaluate each Title II case on an individual basis in determining if you should suspend benefits in accordance with existing procedures in GN 02607.160.

2. Opinion

Questions Presented

You asked:

1) whether the agency should suspend benefits for Title II beneficiaries who enter Colorado’s Veterans Trauma Court (VTC), and who receive sanctions for failing to abide by VTC rules; and

2) whether NH G~’s benefits should be suspended during a period of confinement at the E~ County Jail.

Short Answers

Colorado’s VTC provides jail diversion services to participating veterans, sparing them from imprisonment so long as they follow program rules and the terms of their plea agreement. Participating in the VTC is not the same as confinement pursuant to a conviction of a criminal offense that would trigger a suspension of benefits. Relatedly, VTC participants may be sanctioned if they do not follow program rules or if they commit other infractions, with sanctions ranging from a reprimand to jail or prison time. Whether a sanction leads to confinement that would trigger a suspension of benefits must be considered on a case-by-case basis. Finally, the NH’s confinement in the E~ County Jail from October XX, 2016 to February XX, 2017, triggered a suspension of his Title II benefits.

Background

The VTC serves United States veterans with trauma spectrum disorders and/or substance abuse issues who are charged with lower level felonies or misdemeanors. The VTC is a post-plea program, meaning veterans must plead guilty and agree to abide by the VTC’s rules. The VTC does not operate like a traditional courtroom. Participants actively engage in treatment and counseling, make regular court appearances, and undergo careful supervision. VTC staff members also help participants access treatment and assistance programs. The VTC strives to make veterans take responsibility for their actions, reintegrate them back into society, and make them whole again.¹

The NH is a veteran with a history of substance abuse. He pled guilty to a non-violent felony and was accepted into the VTC in November 2014. The NH was not incarcerated at that time. In October 2016, however, VTC staff learned that the NH was not complying with the requirements of the program. The NH’s substance abuse issues contributed to his noncompliance, and the VTC judge ordered that the NH be taken into custody for his own safety until a course of action could be chosen.

The NH was taken into custody at the E~ County Jail on October XX, 2016. The VTC judge later ordered that the NH participate in a 90-day Reintegration and Recovery (R&R) Program at the E~ County Jail.² The R&R Program provides comprehensive substance abuse treatment to participants while they are confined in jail. See Reintegration & Recovery, https://www.epcsheriffsoffice.com/sections-detention-bureau/security-division/reintegration-recovery (last visited Apr. 25, 2018). Participants do not pay for the cost of treatment. The NH’s treatment began on November XX, 2016, and ended on February XX, 2017. He was then transferred to the Department of Veterans Affairs for further treatment in a partial hospitalization program. The NH’s condition has since improved, and he successfully completed the VTC program in December 2017.

Discussion

Participation in the VTC and Sanctions for Violating VTC Rules Do Not Warrant Automatic Suspension of Benefits

Under the Social Security Act (the Act), monthly benefits cannot be paid to a beneficiary while he “is confined in a jail, prison, or other penal institution or correctional facility pursuant to his conviction of a criminal offense” for more than 30 days. 42 U.S.C. § 402(x)(1)(A)(i);³ see also 20 C.F.R. § 404.468(a). The legislative history for what would become § 402(x) of the Act shows that Congress wished to conserve agency resources by suspending benefits to prisoners whose needs were provided for at taxpayer expense during confinement. See S. Rep. No. 96-987, at 7-9 (1980) (“The need for this continuing source of income is clearly absent in the case of an individual who is being maintained at public expense in prison.”); see also Wanless v. Principi, 18 Vet. App. 337, 351-53 (2004) (discussing legislative history).

A series of POMS describes how agency employees should evaluate whether to suspend benefits for confined beneficiaries. See POMS GN 02607.001-.975. GN 020607.160(A)(1)(b) explains that benefits should be suspended if a beneficiary is “convicted of a criminal offense and sentenced to a period of confinement in a correctional facility or institution,” and “based on that conviction, remains confined in a United States (U.S.) correctional facility or institution for more than 30 continuous days.” The POMS treat a guilty plea as a criminal conviction. See GN 02607.001(B)(2).

Here, participation in VTC does not warrant an automatic suspension of benefits. Although participants must plead guilty to a criminal offense to enter the program, VTC helps veterans avoid confinement in jail or prison. See Participation Guide at 2; 42 U.S.C. § 402(x)(1)(A)(i) (confinement in jail or similar facility for more than 30 days required for suspension of benefits); 20 C.F.R. § 404.468(a) (same). Participation in VTC, standing alone, is not confinement and does not warrant suspending benefits.

Relatedly, a sanction for failing to comply with VTC rules or committing other infractions also does not warrant an automatic suspension of benefits. Although a sanction may lead to jail or prison time, less severe sanctions like a reprimand from the VTC judge or community service are also possible. See Participation Guide at 7-8. A sanction does not necessarily result in confinement that would trigger a suspension of benefits under the Act. See 42 U.S.C. § 402(x)(1)(A)(i); 20 C.F.R. § 404.468(a). Instead of focusing on a beneficiary’s participation in VTC or whether the beneficiary has been sanctioned, agency staff should follow the applicable POMS on a case-by-case basis to determine if the criteria for a suspension of benefits are met. See GN 02607.160(A)(1)(b).

The NH’s Benefits Should Have Been Suspended During His Confinement

The NH’s confinement at the E~ County Jail triggered the Act’s suspension requirement. Section 402(x) of the Act has three criteria for suspending benefits:

The beneficiary must be “confined in a jail, prison, or other penal institution or correctional facility”;

The confinement must last more than 30 days; and

The confinement must be “pursuant to [the beneficiary’s] conviction of a criminal offense.”

42 U.S.C. § 402(x)(1)(A)(i).

Here, a letter from the E~ County Sheriff’s Office states that the NH “was in custody at the E~ County Jail” from October XX, 2016, to February XX, 2017. The NH’s 111-day confinement in the E~ County Jail satisfies the first two criteria of § 402(x)(1)(A)(i). See 20 C.F.R. § 404.468(c) (describing confinement).

The NH’s confinement also satisfies the third criterion because it was “pursuant to” his conviction of a criminal offense. See 42 U.S.C. § 402(x)(1)(A)(i). The NH pled guilty to a felony charge in order to enter the VTC program. The POMS treat a guilty plea as a conviction. See GN 02607.001(B)(2). The NH violated VTC rules, which prompted the judge to order the NH into custody and, later, to complete the E~ County Jail’s confined R&R program. Because the NH’s confinement would not have occurred absent his guilty plea and criminal conviction, we conclude that the NH’s confinement was “pursuant to” his conviction. See Black’s Law Dictionary, Pursuant To (10th ed. 2014) (pursuant to means “[i]n compliance with” or “in accordance with”); Wilkins v. Callahan, 127 F.3d 1260, 1261-62 (10th Cir. 1997) (upholding suspension of benefits where the beneficiary was confined to a state security hospital for treatment and noting the purpose of the Act was “to deny benefits to those persons whose needs are being provided at public expense due to their confinement . . . .”). The NH was thus confined in the E~ County Jail for more than 30 continuous days pursuant to his conviction of a criminal offense, which triggered the Act’s suspension requirement. See 42 U.S.C. § 402(x)(1)(A)(i).

Our conclusion is also consistent with precedential OGC opinions that hinged on whether each beneficiary’s confinement was mandatory or voluntary. Opinions from Missouri and Texas found that benefits should be suspended while beneficiaries were confined in prison and participating in mandatory substance abuse treatment programs. PR 14-112 Request for Legal Opinion – Suspension of Benefits for Individual on Supervised Probation in a Residential Treatment Facility, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/1506805028 (last visited Apr. 25, 2018); PR 15-052 Whether Confinement in a Texas Substance Abuse Felony Punishment Facility Amounts to Confinement under Section 202(x)(1)(A)(i) of the Social Security Act, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/1506805048 (last visited Apr. 25, 2018).

In contrast, opinions from Illinois and Pennsylvania found that suspension of benefits was inappropriate where beneficiaries voluntarily participated in treatment programs that they could choose to leave, even if those programs were hosted at correctional facilities. PR 15-126 Community Based Correctional Center Placement During Supervised Release, available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/1506805016 (last visited Apr. 25, 2018);

PR 06-132 S2D3B-6, Determining Whether the Benefits of A~ SSN ~ Should Have Been Suspended after October 24, 2005, available at:

https://secure.ssa.gov/apps10/poms.nsf/lnx/1506805042 (last visited Apr. 25, 2018).

Here, the circumstances of the NH’s confinement are similar to those in Wilkins and the Missouri and Texas opinions. The NH was ordered into custody by the VTC judge and then ordered to undergo treatment at the E~ County Jail. His participation was not voluntary, and he was confined until he completed the program. These circumstances satisfied the criteria for suspending the NH’s benefits under Section 402(x) of the Act.

Conclusion

A beneficiary’s Title II benefits cannot be suspended solely because he or she participates in the VTC or receives a VTC sanction. Instead, agency staff should apply the relevant POMS on a case-by-case basis to determine whether a suspension of benefits is appropriate under the Act. Here, the NH’s 111-day confinement in the E~ County Jail satisfies the Act’s criteria for a suspension of benefits.

Footnotes:

[1]

^. See Veteran Trauma Court Participant Guide (Participant Guide), available at https://www.courts.state.co.us/userfiles/file/Court_Probation/04th_Judicial_District/Veterans%20Trauma%20Court%20(VTC)/VTC%20Participant's%20Guide%20-%2021_January_2017.pdf (last visited Apr. 25, 2018). For detailed analysis of the VTC, see Karthik A. Venkatraj, Colorado’s About Face: Mechanics, Progress, and Challenges Facing Veterans Trauma Courts in Colorado, 88 U. Colo. L. Rev. 385 (2017).

[2]

^. The undersigned obtained information about the NH’s participation in the VTC and his confinement in the E~ County Jail from telephone interviews with the VTC Coordinator on January 9, 10, and 12, 2018.

[3]

^. Benefits may also be suspended for other reasons described in the Act. See 42 U.S.C. § 402(1)(A)(ii)-(v). We considered these reasons but concluded they are inapplicable given the facts of this case.