Proposed Solutions to Social Security Representative Payee Problems

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2 Copyright 1990 by National Clearinghouse for Legal Services. All rights Reserved. 24 Clearinghouse Review 570 (October 1990) Proposed Solutions to Social Security Representative Payee Problems by Lori A. Stiegel, Assistant Staff Director with the Commission on Legal Problems of the Elderly, American Bar Association, 1800 M St., NW, Washington, DC 20036, (202) I. Introduction Social security and SSI beneficiaries allegedly in need of a representative payee face critical problems. For example, Social Security Administration (SSA) staff receive insufficient guidance in determining whether a payee is needed and, faced with a shortage of suitable payees, they lack time and resources to select and investigate payees. The beneficiaries' problems also include the suspension of an eligible beneficiary's benefits pending appointment of a payee, restrictions on their right to appeal decisions regarding payee appointment, payee misuse of benefits, inadequate reporting and accounting requirements, and liability of the payee and/or SSA for misuse of funds. /1/ This article provides an overview of solutions proposed by the Representative Payee Abuse Prevention Act of 1989 and the Social Security Representative Payee Act of 1989, a Senate bill and a House bill, respectively, currently pending in Congress. /2/ A proposed SSA demonstration project concerning criminal records checks of potential representative payees is also discussed. II. Proposed Solutions A. Determination of Need for Representative Payee The bills provide guidance to SSA staff who determine whether a beneficiary needs a payee. The Senate bill requires promulgation of regulations encouraging the worker to have face-toface contact with the beneficiary, /3/ whereas the House bill mandates a face-to-face interview at which physical or mental incapacity is evaluated. /4/ The Senate bill also changes the evidentiary standard used in determining need for a payee from "adequate" evidence /5/ to "substantial" evidence /6/ and adds a requirement that the worker give priority consideration to the "immediate needs of the individual." /7/

3 B. Selection and Investigation of Payees Recently, serious problems related to selecting and investigating payees have been the subject of litigation /8/ and publicity. The most egregious example is probably that of Dorothea Puente, on parole for drugging and robbing three elderly people, who was named payee, without investigation, for a boarder whom she claimed was a cousin. She is about to be tried for murdering seven boarders, including the beneficiary, whose checks she continued to cash. /9/ Both bills address selection problems by prohibiting a beneficiary's creditor from serving as payee unless the creditor is a relative who resides in the same household. /10/ Each bill contains significant exceptions to the general rule prohibiting a creditor from serving as a payee. Under certain circumstances, facilities or institutions in which beneficiaries reside are permitted to be payees. /11/ The bills offer new protection by requiring (1) verification of the payee applicant's social security number and other identifying information; (2) a determination as to whether the applicant has been convicted of a felony or misdemeanor under certain sections of the Social Security Act or a felony under any other federal or state law; and (3) a determination as to whether the applicant previously has been terminated or suspended as a payee. /12/ The Senate bill allows appointment of a person with a criminal record as payee if he or she is a spouse of the beneficiary or a parent with custody of minor children. /13/ It prohibits a lump sum payment to a new payee until he or she is investigated, unless funds are urgently needed for medical, shelter, or other basic needs. /14/ The House bill allows a payee previously terminated or suspended to be appointed again if the head of the local SSA office issues a written approval. /15/ SSA has been working with the National Criminal Justice Association to study the feasibility of conducting criminal records checks of payee applicants. Such a process raises many questions and policy issues. For example, should family members be investigated? How extensive should the records check be (federal records, state records, field investigation, or some combination)? What type of check is appropriate (fingerprints or name and date of birth)? Are federal or state statutory changes required? /16/ SSA hopes to implement a ten-state demonstration project to test methods for conducting criminal records checks in 1991 if it can obtain funding. /17/ C. Suspension of Benefits Pending Payee Appointment The Senate bill adds safeguards to protect beneficiaries from suspension of benefits pending payee appointment. It provides that direct payments to a beneficiary who is over 18 or an emancipated minor shall continue while SSA determines whether a payee is needed and then selects and investigates him or her, or until the beneficiary has exhausted his or her appeal rights. /18/ Exceptions are made for beneficiaries receiving lump sum payments, those likely to suffer harm as a result of functional inabilities if paid directly, and SSI beneficiaries determined to be disabled due to substance abuse. /19/ The House bill does not contain any comparable provisions.

4 D. Right to Appeal Decisions Regarding Payee Appointments The Senate bill requires SSA to provide formal notice of the initial determination of a need for a payee to each beneficiary or each person authorized to act on the beneficiary's behalf, if he or she is legally incompetent or an unemancipated minor. The notice must be written in simple language and be given orally upon request. It must explain the right to object to the finding of need for a payee or designation of a certain person as payee, as well as the right to review evidence, submit additional evidence, and make a formal appeal. The notice must be provided before any benefits are made to the payee. /20/ The House bill also provides formal appeal rights to beneficiaries who have received unfavorable decisions. /21/ E. Payee Misuse of Benefits The House bill addresses the problem of payees unlawfully charging for services /22/ by requiring that the Secretary establish maximum fees that may be charged by "qualified organization(s)" for payee services. It defines qualified organizations and provides that any agreement in violation of those rules shall be void and result in termination of the organization's services as payee. The bill also provides that any person who charges a fee, or a qualified organization that charges a fee greater than that allowed by regulation, shall be deemed guilty of a misdemeanor. /23/ The Senate bill does not have any comparable requirements. F. Inadequate Reporting and Accounting Requirements Current provisions on reporting and accounting requirements would generally remain the same, except that the Senate bill would require the establishment of more frequent and more detailed accountability monitoring for certain categories of high-risk payees. These categories shall include but not be limited to (1) licensed or certified facilities that serve as payees for residents; (2) administrators, owners, and employees of those facilities; and (3) all persons not related by blood or marriage to the beneficiary to whom they are providing payee services. /24/ The House bill calls for a monitoring system providing (1) quarterly reporting by the payee of the name, social security number, and address of each beneficiary for whom the payee has provided services, and (2) detailed recordkeeping each year of segregated accounts if two or more beneficiaries are served. /25/ G. Liability of the Payee and/or SSA for Misuse of Funds Under the Senate bill, failure by SSA to monitor or investigate a payee resulting in misuse of benefits by the payee shall constitute an underpayment of benefits that shall be repaid to the beneficiary. The bill also provides that a finding of no misuse or no underpayment, or lack of a decision within 60 days of complaint, shall be treated as an appealable unfavorable decision. /26/ The House bill recognizes an underpayment only in situations in which payee services have been terminated because of fraudulent conversion of benefit proceeds by the payee. /27/ The Senate bill obliges SSA to make a good faith effort to obtain restitution of the misused

5 funds from the payee and provides that if the payee is entitled to benefits on his or her own, those benefits shall be decreased in order to recoup the funds denied to the beneficiary. /28/ III. Conclusion Congress and SSA are seeking to correct many of the problems associated with representative payees in the social security and SSI programs. If enacted, the proposed provisions would address some concerns of beneficiaries and advocates, but many other problems would continue. It remains to be seen whether the pending bills will be enacted and, if so, in what form. footnotes 1. Komlos-Hrobsky, Representative Payee Issues in the Social Security and Supplemental Security Income Programs, 23 CLEARINGHOUSE REV. 412 (Spec. Issue 1989). 2. Representative Payee Abuse Prevention Act of 1989, S. 1130, 101st Cong., 1st Sess., 135 CONG. REC (1989) [hereinafter S. 1130]; Social Security Representative Payee Act of 1989, H.R. 2422, 101st Cong., 1st Sess., 135 CONG. REC (1989) [hereinafter H.R. 2422]. 3. S. 1130, supra note 2, at Sec. II(b)(1), (b)(2). 4. H.R. 2422, supra note 2 at Sec. 2(b)(1), (b)(2) U.S.C. Sec. 405(j)(2)(A). 6. S. 1130, supra note 2 at Sec. II(b)(1), (b)(2). 7. Id. 8. E.g., Holt v. Bowen, 712 F. Supp. 813 (D. Colo. 1989) (Clearinghouse No. 44,479); Briggs v. Sullivan, 886 F.2d 1132 (9th Cir. 1989) (Clearinghouse No. 44,289). 9. Conversation with Curtis Child, Legal Servs. of N. Cal., Sacramento, Cal. (July 9, 1990). Dorothea Puente's boarding home is in Sacramento and that is where she faces trial. 10. S. 1130, supra note 2 at Sec. III(b)(1), (b)(2); H.R. 2422, supra note 2 at Sec. 2(c)(1), (c)(2). 11. Id.

6 12. S. 1130, supra note 2 at Sec. II(b)(1), (b)(2); H.R. 2422, supra note 2 at Sec. 2(c)(1), (c)(2). 13. S. 1130, supra note 2 at Sec. II(b)(1), (b)(2). 14. Id. 15. H.R. 2422, supra note 2 at Sec. 2(c)(1), (c)(2). 16. Nat'l Criminal Justice Ass'n & SSA, The Potential for State Cooperation in Conducting Background Checks of Payees for Social Security Administration Programs (Washington, D.C., Mar. 15, 1990) (workshop discussion & materials). 17. Conversation with Fred Graf, Social Insurance Specialist/Project Leader, SSA, Baltimore, Md. (July 6, 1990). 18. S. 1130, supra note 2 at Sec. III(c)(1), (c)(2). 19. Id. 20. S. 1130, supra note 2 at Sec. III(a)(1), (a)(2). 21. H.R. 2422, supra note 2 at Sec. 5(a), (b) C.F.R. Secs (a), (a). 23. H.R. 2422, supra note 2 at Sec. 2(d)(1), (d)(2). 24. S. 1130, supra note 2 at Sec. IV. 25. H.R. 2422, supra note 2 at Sec S. 1130, supra note 2 at Sec. III(d)(1), (d)(2). 27. H.R. 2422, supra note 2 Sec. 5(a), (b). 28. S. 1130, supra note 2 at Sec. III(d)(1), (d)(2).