Washington

What Do I Do If Social Security Stops my Benefits Because I am a "Fleeing Felon"?

Authored By: Northwest Justice Project LSC Funded
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Am I a fleeing felon?

Social Security will consider you a fleeing felon and ineligible for benefits if you have an outstanding arrest warrant specifically issued for fleeing prosecution or confinement on a felony charge.

The rules have recently changed: Under federal law, you cannot get Social Security benefits if you are

  • fleeing to avoid prosecution for a felony or
  • violating the terms of probation or parole

Social Security (SSA) used to interpret these terms broadly. They used to say that the mere existence of an outstanding felony arrest warrant, no matter when or why issued, automatically made you a "fleeing felon." SSA considered any probation or parole warrant evidence that you were "actively" violating probation or parole, even if no court had in fact found that you had violated probation or parole. When SSA found out that someone had an outstanding warrant, they simply denied or cut off their benefits.

Recent federal cases have limited the cases where SSA may deny or cut off benefits due to warrants. In April 2009, SSA settled a class action lawsuit where the plaintiffs alleged that SSA was interpreting the "fleeing felon" provision too broadly. See Martinez v. Astrue, Case No. 08-CV-4735 CW(N.D. Cal. 2009). SSA agreed as part of the settlement that the "fleeing felon" provision only applies to felony warrants specifically issued for flight.

In another class action lawsuit, Clark v. Astrue, 603 F.3d 140(2d Cir. 2010),the Second Circuit Court of Appeals ruled that a probation or parole warrant, on its own, is not enough to prove that someone is "actively" violating the terms of their probation or parole. On April 13, 2012, the Clark Court ordered SSA to reinstate benefits and reopen claims for everyone whose benefits SSA had suspended solely because of an outstanding warrant for alleged violation of probation or parole on or before April 13, 2012. SSA must grant this relief to all everyone affected by April 2014.

After those cases, how does an outstanding warrant affect my eligibility for SSA benefits?

Now SSA will only consider you a "fleeing felon" if you have an outstanding arrest warrant specifically issued for fleeing prosecution or confinement on a felony charge. These include and are limited to felony warrants for these National Crime Information Center felony offense codes:

  • 4901 (Escape)
  • 4902 (Flight to Avoid Prosecution or Confinement)
  • 4999 (Flight-Escape)

Warrants for all other felonies are not enough for SSA to say someone is ineligible as a "fleeing felon."

Under the pre-Martinez settlement policy, the vast majority of suspensions/denials were for codes other than the three above. A complete list of felony offense codes is at POMS GN 02613.900: https://secure.ssa.gov/poms.nsf/lnx/0202613900.

The SSA may no longer use only a warrant to prove that someone is actively violating the conditions of their probation or parole. If SSA finds out you have an outstanding probation or parole warrant, SSA probably has to investigate whether you are actively violating the terms of your probation or parole. How deeply SSA has to investigate is unclear.

Does being a fleeing felon affect my other public benefits?

Probably. You are not eligible for many federal and state public benefits. Your benefits for the following federal programs may end:

  • Social Security retirement

  • Social Security Disability (SSD)

  • Supplemental Security Income (SSI)

  • Veterans benefits

  • Food assistance

  • TANF

Your benefits for the following state programs may end:

  • SFA
  • Basic Food Assistance

Does being a fleeing felon affect benefits for my spouse and children?

Yes. Social Security suspends the dependent's benefits too. (Dependents = spouses or children)

What if I am a child and I am a fleeing felon?

The fleeing felon rule applies to juvenile offenders. For Social Security, if you are a child getting dependent benefits, you may lose those benefits. In Washington, we call a juvenile convicted of a crime an adjudicated offender, not a felon. The SSA may cut off your benefits anyway. You will have to argue that you are not a fleeing felon, but rather an adjudicated offender your appeal hearing. The state law on this is at RCW 13.04.240. You should state this law at your hearing.

I know that I have an outstanding warrant. Should I apply for benefits anyway?

Yes. You should try to resolve the outstanding warrant before you apply for benefits. But it takes a long time to apply and be approved for Social Security. There is often time to take care of the warrant before your approval comes through.

When you apply for federal or state public benefits, they will ask whether you have any outstanding warrants or violations. If you know that you do, answer honestly. If you give an answer under oath that is not the truth, you may later face fraud charges. This could mean jail time and paying back any benefits you got.  

If you apply for benefits and have an outstanding warrant or violation, the agency you are applying with may tell law enforcement where you are to help them arrest you. If you have a warrant when you go to a hearing, you will probably get arrested and miss the hearing.

How far back may SSA suspend my benefits?

SSA will suspend benefits as of the first month you had an outstanding arrest warrant specifically issued for fleeing prosecution or confinement on a felony charge. The SSA looks back, finds the date that you became ineligible, and then notifies you that they will end or suspend your benefits effective that date.

At some point, the SSA will also ask you to pay back any benefits you got after you became ineligible. SSA calls this an overpayment.

SSA told me they will suspend my benefits because I am a fleeing felon. What can I do?

It depends on the benefits affected. You must do these things, in order:

  • You must act quickly to stop them from suspending your benefits.

  • You will have to address the underlying warrant.

  • If you do not successfully address the warrant, you will have to work with an overpayment.

The SSA will probably send you an Advance Notice of Suspension. Read it carefully. It should say:

  • what your rights are

  • when you have to exercise your rights

FIRST, Make a Timely Protest to the Suspension. Depending upon how the SSA learned about the warrant, you may get advance notice of the intended suspension. This advanced notice is the "due process period." 

If the SSA learned about the warrant by a computer match (fugitive felony alerts or paper notes from law enforcement pursuant to formal notification agreement), you will get 35 days' advance notice of the suspension. If the SSA learned about the warrant from another source (the newspaper, reports from neighbors or relatives, or law enforcement contacts), you will get 15 days' advance notice of the suspension.  

  • If you or someone acting for you reports the warrant, SSA will suspend your benefits immediately. You will get an overpayment notice at the same time that you get your suspension notice.

If you protest the suspension during this due process period, the SSA will put off the suspension until it figures out whether your protest qualifies you for a good cause exception. (Read more on the good cause exceptions below.) You will keep getting your check. If the SSA later determines that it should have suspended your benefits, it will seek an overpayment for the benefits you got during the deferral.

If you do not protest during this due process period, the SSA will suspend your benefits. You may still protest the suspension of benefits. The SSA will only give your benefits back if you win your protest.

SECOND, Address the Warrant.  Take a close look at your notice of suspension. It should tell you why the SSA is suspending your benefits. It should also tell you about the warrant. The notice should say:

  • where the warrant was issued

  • the date it was issued

  • why it was issued

If it does not, ask the SSA for this information.

The SSA got a warrant number from a federal or state agency before sending you its notice. You will need the warrant number. You will have to contact the agency that issued the warrant or violation to address your fleeing felon status.
After you learn which agency issued the felony warrant, contact them to get a copy. Once you get it, you must contact the prosecutor's office that issued the warrant or violation to address the underlying issue.

    • Some public defender agencies will help with these cases.

You may be able to get the warrant or violation dismissed. Here are some grounds for dismissal:

  • Identity theft – they got the wrong person

  • The circumstances of your move from that jurisdiction - examples: you were fleeing from an abusive situation, or you were low-income and could not afford to stay there while the criminal issue was resolved

  • You have since rehabilitated yourself and shown yourself to be a law-abiding citizen

  • Administrative error: the probation officer said that you did not register your move but you did

There are more grounds than these. If the prosecutor will not dismiss the warrant or violation, then you will have to work with the prosecutor – preferably through your criminal law attorney – to resolve the matter.   

Do I have to respond by a certain time?

Yes. The timelines to prevent the suspension of your benefits are in the section above.

You have the right to protest the notice of suspension for twelve months. After that, all you can do is address the underlying warrant, unless you meet the criteria for the mandatory good cause exception. You will probably have to reapply for benefits and wait for a new decision from SSA.

    • You must respond to the advance notice of suspension within the periods listed above.

How do I protest the Notice of Suspension?

The Notice suspending benefits should list a contact office for you to make your protest. You must meet the deadlines listed above. You can protest by phone or by mail. You must also put your protest into writing. Keep a copy of it.

If you deliver the original to the contact office, ask the person taking it from you to date stamp your copy. You can also send the letter via certified mail, return receipt requested. The post office will return the green return receipt to you after they deliver your letter. Keep this return receipt with your copy of your protest letter. This is your proof that you protested the suspension of your benefits on time.

What happens after I protest the suspension of my benefits?

After you protest the suspension of your benefits, you have 90 days to prove that SSA should not have suspended your benefits. SSA may give you more than 90 days in a few situations.

During the 90 days, you must do one or more of the following:

  • Show the SSA evidence that you satisfied your warrant.

  • Show the SSA evidence of "good cause."

  • State that you can show "good cause," but you need more time to get evidence. The SSA will give you up to an extra 90 days to get this evidence.

  • State that you do not have a warrant and that the SSA identified the wrong person.

  • State that you have satisfied the warrant and provide proof.

  • Protest the fact that you meet the suspension definition as a fugitive felon.

I used to get benefits. I do not now. Now the SSA is telling me I was not eligible then because I was a fleeing felon. What can I do?

You may get a notice of an overpayment from the SSA that says it paid you benefits during a period when you were a fleeing felon. The SSA calls this notice a closed period of suspension and overpayment notice. You must protest this notice within 60 days of getting it.

You may protest it for the same reasons given above. If you need more time to find evidence of good cause, the SSA may give you an extra 60 days.

What is "Good Cause"?

In some cases, the SSA will not suspend your benefits and will not seek an overpayment for the benefits. These cases get "good cause" exceptions.

There are mandatory good cause exceptions, where the SSA cannot suspend your benefits. There are also discretionary good cause exceptions where the SSA can decide whether to suspend your benefits.

Mandatory good cause exceptions: There is no time limit for claiming a mandatory good cause exception. You can raise it any time. There are two mandatory good cause exceptions.

First, if the court that issued or has authority over the warrant has done one of the following, then the SSA must grant you the good cause exception:

  • "Found the individual not guilty of the criminal offense or probation/parole violation; or

  • "Dismissed the charges relating to the criminal offense or probation/parole violation on the unsatisfied warrant, or

  • "Vacated the warrant for arrest of the individual for the criminal offense or probation/parole violation; or

  • "Issued any similar exonerating order (such as a judicial order excusing the individual from alleged fault or guilt) or taken similar exonerating action (such as criminal offense on which the warrant is either no longer considered a crime punishable by death or confinement of more than one year or no longer enforced; such as a  felony)."

Second, the SSA must grant you a good cause exemption if you are not the person named in the warrant or the violation because of mistaken identity due to identity fraud.

If you cannot show mandatory good cause, the SSA will give you the chance to show good cause for what they call "mitigating circumstances" or discretionary good cause. The time limits for requesting the SSA to look at mitigating circumstances are:

  • twelve months from the Advance Notice,

  • twelve months after you get your first award, or     

  • twelve months from the date of the fleeing felon notification.

There are two ways to show mitigating circumstances. Each way has several parts. You must be able to show each part. The SSA calls these Option A and Option B.
To show Option A, you must show each of the following:

  • "The criminal offense or probation/parole violation on which the beneficiary was charged or convicted was non-violent and not drug related. For a probation/parole violation, the original offense was also non-violent and not drug related, and

  • "The beneficiary was not convicted of any subsequent felony crimes since the warrant was issued, and

  • "The law enforcement agency that issued the warrant reports that it will not extradite the fugitive or is unwilling to act on the warrant."

Option B is different. You must prove each of these:

  • "The criminal offense or probation/parole violation on which the beneficiary was charged or convicted was non-violent and not drug related. For a probation/parole violation the original offense was also not drug related, and

  • "The beneficiary was not convicted of any subsequent felony crimes since the date the warrant was issued; and

  • "The warrant is/was the only existing warrant and was issued 10 or more years prior to the date the Fugitive Felon Match processed the current warrant information; and

  • "The beneficiary lacks the mental capacity to resolve a warrant as evidence by one of the disability diagnostic codes listed in GN 02613.910; or is incapable of managing payments; or is legally incompetent; or The SSA has appointed a representative payee to handle his payments; or is residing in a long-term care facility, such as a nursing home or mental treatment/care facility."

How do I prove "Good Cause"?

After you request a good cause exception from the SSA, you have 90 days to give SSA evidence or information. If you do not do so at the end of 90 days, the SSA will not find good cause.

If you request a good cause exception within the due process period, the SSA will not suspend your benefits. If the due process period has already passed when you request the good cause exception, the SSA will only reinstate the benefits if you show good cause.

The SSA prefers your proof of good cause to be on the letterhead of the court, law enforcement agency or probation/parole agency that issued the warrant or court document, with the person signing the document having knowledge of the facts in the letter. This can be a court docket, a copy of the arrest warrant, or other official document. If you cannot provide this preferred documentation, you may come up with other proof. But any alternative documentation must be just as credible as the preferred documentation.

    • Examples: You can use a fax from the agency that issued the warrant or the violation. It must have the name of the person making the report and that person's job position for the agency or court issuing the warrant or violation and the date. The SSA can also verify the facts through a call to or from the agency or court or your doctor or nursing home administrator.
    • Where the good cause exception requires that you have not had any other, more recent felony convictions, you will have to give the SSA a statement saying that.

The SSA will carefully review the information you give it. If the SSA finds good cause, then it will not suspend your benefits or seek to recover any payments made to you under the fugitive felon law. If the SSA determines that the evidence you supply is fraudulent, altered, or cannot satisfactorily establish good cause, then they will report the case to their investigators.

The SSA says I did not show good cause, or I just fulfilled the requirements of the warrant/violation and now the agency wants money back from me. What's up?

If you satisfy the warrant/violation criteria or if the SSA says you did not show good cause, then the SSA will try to recover for an overpayment.

I lost the good cause exception. Can I do anything else to challenge the suspension?

Sometimes a Notice to Suspend benefits will come with a notice of overpayment. The SSA believes that you must pay back any benefits paid to you while the felony was outstanding. If there is a notice of an overpayment with the Notice to Suspend, follow the steps for both notices.

  1. Request Waiver. If you ask for waiver, you will keep getting benefits during your appeal. You must request it within ten days of the date of the notice. You get an extra five days for mailing. You should request waiver if SSA denies your protest and you get an overpayment notice, even if you do not get both notices at the same time. Call the SSA's toll free number between 7 a.m. and 7 p.m. (1-800-772-1213or 1-800-325-0778 TTY). Our publications called "How to Fight Your SSI or SS Disability Denial" and "How to Fight an SSI or SSD Overpayment" have more on waiver at www.washingtonlawhelp.org.  The waiver rules talked about in those publications apply to retirement benefits as well as to SSI and disability benefits.

  2. Request Reconsideration. You must request Reconsideration within 60 days of the adverse notice.  

What if I need legal help?

CLEAR is Washington's toll-free, centralized intake, advice and referral service for low-income people seeking free legal assistance with civil legal problems. 

  • Outside King County: Call 1-888-201-1014 weekdays from 9:10 a.m. until 12:25 p.m.  CLEAR works with a language line to provide interpreters as needed at no cost to callers.  If you are deaf or hard of hearing, please call 1-888-201-1014 using your preferred TTY or Video relay service.

  • King County: Call 211 for information and referral to an appropriate legal services provider Monday through Friday from 8:00 am – 6:00 pm. You may also call (206) 461-3200, or the toll-free number, which may be useful when calling from a pay phone, 1-877-211-WASH (9274). 211 works with a language line to provide interpreters as needed at no cost to callers. Deaf and hearing-impaired callers can call 1-800-833-6384 or 711 to get a relay operator at no cost, who will then connect them with 211. You can also get information on legal service providers in King County through 211's website at www.resourcehouse.com/win211/.

  • Persons 60 and Over: Persons 60 or over may call CLEAR*Sr at 1-888-387-7111, regardless of income.

 

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This publication provides general information concerning your rights and responsibilities. It is not intended as a substitute for specific legal advice.
This information is current as of
March 2013
.

© 2013 Northwest Justice Project. 1-888-201-1014
(Permission for copying and distribution granted to the Alliance for Equal Justice and individuals for non-commercial use only.)