Individuals With Certain Criminal Convictions as Representative Payees, 9766-9768 [2013-02919]

Agencies

• Social Security Administration

[Federal Register Volume 78, Number 28 (Monday, February 11, 2013)]
[Notices]
[Pages 9766-9768]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02919]


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SOCIAL SECURITY ADMINISTRATION

[Docket No. SSA-2012-0076]


Individuals With Certain Criminal Convictions as Representative 
Payees

AGENCY: Social Security Administration.

ACTION: Notice; Request for comments.

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SUMMARY: We are requesting information from the public regarding 
whether we should prohibit persons who have been convicted of certain 
crimes from serving as representative payees under titles II, VIII, and 
XVI of the Social Security Act (Act). We are seeking this information 
in order to determine the best way to protect our beneficiaries from 
persons whose criminal history indicates they may pose an increased 
risk of abuse or exploitation of vulnerable individuals.

DATES: To ensure that your comments are considered, we must receive 
them no later than April 12, 2013.

ADDRESSES: You may submit comments by any one of three methods--
Internet, fax, or mail. Do not submit the same comments multiple times 
or by more than one method. Regardless of which method you choose, 
please state that your comments refer to Docket No. SSA-2012-0076 so 
that we may associate your comments with the correct document.
    Caution: You should be careful to include in your comments only 
information that you wish to make publicly available. We strongly urge 
you not to include in your comments any personal information, such as 
Social Security numbers or medical information.
    1. Internet: We strongly recommend that you submit your comments 
via the Internet. Please visit the Federal eRulemaking portal at https://www.regulations.gov. Use the Search function to find docket number 
SSA-2012-0076. The system will issue you a tracking number to confirm 
your submission. You will not be able to view your comment immediately 
because we must post each comment manually. It may take up to a week 
for your comment to be viewable.
    2. Fax: Fax comments to (410) 966-2830.
    3. Mail: Address your comments to the Office of Regulations and 
Reports Clearance, Social Security Administration, 107 Altmeyer 
Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.
    Comments are available for public viewing on the Federal 
eRulemaking portal at https://www.regulations.gov or in person, during 
regular business hours, by arranging with the contact person identified 
below.

FOR FURTHER INFORMATION CONTACT: Gina Clemons, Office of Retirement and 
Disability Policy, Social Security Administration, 6401 Security 
Boulevard, Baltimore, MD 21235-6401, (410) 966-9897. For information on 
eligibility or filing for benefits, call our national toll-free number, 
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, 
Social Security Online, at https://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: 

Background

    A person who receives benefits from us may be unable to manage 
those benefits for reasons such as his or her young age or mental or 
physical impairment. In these cases, we select a representative payee 
if we believe that representative payment, rather than direct payment 
of benefits, will serve the beneficiary's interest. Generally, we 
appoint a representative payee if we determine that the beneficiary is 
not able to manage or direct the management of benefit payments in his 
or her interest. The representative payee may be an organization or a 
person, such as a parent, relative, or friend of the beneficiary. We 
require the representative payee to use the money in the beneficiary's 
best interest and to report the expenditures to us to ensure that the 
representative payee is using the funds appropriately. Our policies on 
appointing representative payees and their use of benefits are designed 
to protect the beneficiaries' interests.
    When a person or an organization requests to serve as a 
representative payee, we investigate the potential representative payee 
to help ensure that the person or organization will perform the duties 
of a representative payee responsibly and in the beneficiary's best 
interests. When we investigate, we look at factors such as the 
potential representative payee's relationship to the beneficiary, any 
past performance as a representative payee for other beneficiaries, and 
any criminal history the potential representative payee may have.
    The Act prohibits certain groups of persons from serving as 
representative payees due to their criminal history. For example, the 
Act prohibits from serving as representative payees persons convicted 
of Social Security fraud \1\ and persons who are fleeing to avoid 
prosecution, or custody or confinement after conviction, of a felony, 
or an attempt to commit a felony.\2\ In other cases, the Act gives us 
discretion to determine whether it would be appropriate to appoint 
someone as a representative payee despite his or her criminal history. 
The Act provides that we may not certify payment of benefits to a 
person as a representative payee if that person has been convicted of 
an offense under Federal or State law that results in imprisonment for 
more than 1 year, ``unless the Commissioner determines that such 
certification would be appropriate notwithstanding such conviction.'' 
\3\
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    \1\ Sections 205(j)(2)(B)(i)(III), 205(j)(2)(C)(i)(I), 
807(d)(1)(A), 1631(a)(2)(B)(ii)(III), and 1631(a)(2)(B)(iii)(I) of 
the Act, 42 U.S.C. 405(j)(2)(B)(i)(III), 405(j)(2)(C)(i)(I), 
1007(d)(1)(A), 1383(a)(2)(B)(ii)(III), and 1383(a)(2)(B)(iii)(I).
    \2\ Sections 205(j)(2)(C)(i)(V), 807(d)(1)(E), and 
1631(a)(2)(B)(iii)(V) of the Act, 42 U.S.C. 405(j)(2)(C)(i)(V), 
1007(d)(1)(E), and 1383(a)(2)(B)(iii)(V).
    \3\ Sections 205 (j)(2)(B)(i)(IV), 205(j)(2)(C)(i)(IV), 
807(d)(1)(D), 1631(a)(2)(B)(ii)(IV), and 1631(a)(2)(B)(iii)(IV) of 
the Act, 42 U.S.C. 405(j)(2)(B)(i)(IV), 405(j)(2)(C)(i)(IV), 
1007(d)(1)(D), 1383(a)(2)(B)(ii)(IV), and 1383(a)(2)(B)(iii)(IV).
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    Over 5.5 million of our beneficiaries have a representative 
payee.\4\ Most representative payees serve beneficiaries appropriately. 
Given the sheer size of our representative payment program, however, we 
occasionally find that a

[[Page 9767]]

representative payee has used his or her position of trust to take 
advantage of beneficiaries. Over the last several years, we have become 
aware of several situations in which representative payees took 
advantage of beneficiaries. For example, one organizational 
representative payee mistreated several intellectually disabled men for 
whom it served both as representative payee and employer. Inspectors 
from the State of Iowa, acting on a complaint, found that the 
organization kept the men in sub-standard housing and committed a 
number of violations of the Iowa Code with respect to the men's pay. 
The state brought charges against the organization, including failure 
to provide minimum wage, failure to provide pay stubs, and making 
illegal deductions. The United States Equal Employment Opportunity 
Commission also brought an action against the organization under the 
American with Disabilities Act, alleging that the organization denied 
the workers lawful wages, subjected them to abusive verbal and physical 
harassment, restricted their freedom of movement, required them to live 
in deplorable and sub-standard living conditions, and failed to provide 
adequate medical care.
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    \4\ Social Security Administration, Annual Statistical 
Supplement, 2012, Table 5.L.1 (available at: https://www.socialsecurity.gov/policy/docs/statcomps/supplement/2012/5l.html.
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    In another case, law enforcement officials in Philadelphia have 
charged a representative payee with holding captive and abusing several 
vulnerable beneficiaries over a period of years as part of a scheme to 
steal their Social Security benefits and Supplemental Security Income 
payments. As we learned of the criminal proceedings in this case, we 
also learned that this person had been convicted of murder more than 20 
years ago.
    We take the well-being of our beneficiaries very seriously. As 
Congress intended, when we evaluate a potential representative payee, 
we carefully consider the applicant's criminal history, even when it 
does not fall within the categories that result in a prohibition under 
the Act from serving as a representative payee. If a potential 
representative payee has a criminal history that does not result in a 
prohibition under the Act, we do not appoint that person unless we find 
a compelling reason to do so after we weigh the person's criminal 
history, his or her relationship to the beneficiary, custody of the 
beneficiary, and other factors. We have a number of procedures designed 
to prevent the appointment of representative payees who might take 
advantage of beneficiaries, as well as to discover situations in which 
representative payees act inappropriately. We also take quick action 
when we become aware of situations where representative payees are not 
acting appropriately.
    Congress amended the Act to provide that we may prohibit a person 
from serving as a representative payee if that person has been 
convicted of an offense under Federal or State law that results in 
imprisonment for more than 1 year because it believed the provision 
would decrease the likelihood of mismanagement or abuse of 
beneficiaries' funds and help ensure that we act as an appropriate 
steward of taxpayer funds.\5\ As part of our commitment to further 
Congress' intent and protect beneficiaries, we began a pilot in our 
Philadelphia region in June 2012. In this pilot, we bar potential 
representative payees who have been convicted of certain crimes 
involving violence or theft from serving as a representative payee. We 
also remove that person as a representative payee if he or she is 
already serving another beneficiary. We ask about an applicant's 
criminal history during the representative payee interview process, and 
we review information we have regarding criminal convictions. Under 
this pilot, we do not choose an applicant to be a payee if he or she 
has been convicted under Federal or State law for: (1) Human 
trafficking; (2) false imprisonment; (3) kidnapping, rape or other 
sexual offense requiring registration as a sex offender; (4) first 
degree murder; (5) robbery; (6) fraud to obtain government assistance; 
(7) fraud by scheme; (8) theft of government funds or property; 9) 
abuse; (10) neglect; (11) forgery; or (12) identity theft. We also bar 
a representative payee applicant who has been convicted of an attempt 
to commit any of these crimes or conspiracy in connection with any of 
these crimes.
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    \5\ S. Rep. No. 108-176, at 10 (2003); H.R. Rep. No. 108-46, at 
30 (2003).
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    We designed the pilot as a means to utilize our scarce 
administrative resources efficiently. Under the procedures in our 
pilot, we ask an applicant to be a representative payee about his or 
her criminal history during the representative payee interview process. 
To date, we only use information from our systems or self-reporting to 
obtain information about the applicant's criminal history, but we 
intend to use public information to conduct a criminal background check 
of the applicant. If we find that the person has been convicted of one 
of the specified crimes, we would not select the person to be a 
representative payee, and we would remove that person as representative 
payee if he or she already serves as a representative payee for another 
beneficiary.
    In our pilot, we do not apply this bar if the applicant is the 
custodial parent, custodial spouse, or custodial court-appointed legal 
guardian of the beneficiary for whom the applicant is applying to serve 
as representative payee. In our experience, custodial parents and 
spouses generally serve appropriately as representative payees for 
their children and spouses. Under the pilot, if a potential 
representative payee who is the custodial parent or custodial spouse of 
the beneficiary has one of the specified criminal convictions, we weigh 
various factors, including the potential representative payee's 
criminal history and his or her relationship to and custody of the 
beneficiary, before we decide whether to appoint the person as 
representative payee.
    Given the serious nature of the crimes we specify, we believe it 
would be appropriate to apply the prohibition regardless of how far in 
the past the crime or the conviction for the crime took place. We would 
not, of course, apply this bar if the representative payee applicant 
provides satisfactory evidence that his or her conviction has been 
overturned on appeal, or that he or she has been granted a full or 
absolute pardon by the President of the United States or appropriate 
state authority.

Request for Comments

    We ask for your comments about whether we should prohibit persons 
who have been convicted of certain crimes from serving as a 
representative payee. We ask that, in preparing comments, you address 
questions such as:
    (1) Should we apply the prohibition to a representative payee 
applicant who is the custodial parent or custodial spouse of the 
beneficiary?
    (2) Are the crimes that we have identified appropriate ones to 
which to apply the prohibition? Are there other crimes to which we 
should apply the prohibition?
    (3) If you believe that the crimes that we have identified should 
not result in a prohibition from serving as a representative payee, how 
would you further Congress' intent that we decrease the likelihood of 
mismanagement or abuse of beneficiaries' funds and ensure that we act 
as an appropriate steward of taxpayer funds?
    (4) Should we apply the prohibition regardless of how far in the 
past the crime or the conviction for the crime took place?

[[Page 9768]]

    (5) Are there any additional groups to whom the prohibition should 
or should not apply?
    (6) If you have you ever served as a representative payee, would a 
``bar'' policy have discouraged you from applying to be a payee? If you 
have never served as a representative payee, do you believe that a 
``bar'' policy will discourage individuals from applying to be a payee? 
If so, please explain how you believe you would have been discouraged, 
or other individuals will be discouraged, from applying to be a 
representative payee.
    Please see the information under ADDRESSES earlier in this document 
for methods to give us your comments. We will not respond to your 
comments, but we will consider them as we review our policies and 
instructions to determine if we should revise or update them.

    Dated: February 1, 2013.
Michael J. Astrue,
Commissioner of Social Security.
[FR Doc. 2013-02919 Filed 2-8-13; 8:45 am]
BILLING CODE 4191-02-P