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May 5, 2009
Social Security law and regulations say that to deny or stop benefits because of an outstanding felony warrant there has to be a determination that the person is “fleeing” with the specific intent to avoid prosecution or confinement.1 Disability Rights California joined the National Senior Citizens Law Center, Munger, Tolles & Olson and other organizations in Martinez v. Astrue,2 a nationwide class action that challenged Social Security’s policy of denying or stopping benefits based on the existence of a warrant alone without also considering whether or not the person was “fleeing.” The change in policy affects those applying for or receiving
In addition to changing its policy going forward, Social Security agreed to provide back benefits to some whether or not they are currently receiving benefits and reinstatement to others who are not currently on benefits. We will post the proposed settlement as soon as it is filed with the court for approval. People will be able to file comments about the proposed settlement before the hearing on approval.
Go here for the two Emergency Transmittals or Messages – “EMs” - issued by Social Security to field offices and others. These are Social Security’s first steps in following the settlement agreement:
There are some people with outstanding warrants who will not be helped by the settlement:
First, people with outstanding warrants that are coded with one of the following 3 National Crime Information Center (NCIC) Uniform Offense Classification Codes will have their benefits denied or suspended and will not be entitled to retroactive relief. These represent a small portion of felony warrants:
Code 4901 – Escape
Code 4902 – Flight to avoid prosecution, confinement, etc.
Code 4999 – Flight-Escape
Benefit recipients and applicants with warrants with these codes will be able to challenge the classification.
Second, this settlement does not help those who are denied or lose benefits because of a warrant based on an alleged violation of the terms of probation or parole. This is because the “fleeing” language in the statute and regulations does not apply to probation or parole warrants.3 Parole/probation warrants have NCIC codes 5011 and 5012.
Who is helped right now by Social Security’s agreement not to take any adverse action as of April 1 based on outstanding warrants except for parole/probation warrants or warrants with one of the three NCIC codes?
(1) An outstanding warrant will not trigger a denial or suspension or other adverse action on or after April 1, 2009, except for parole/probation warrants or warrants with one of the three NCIC codes. In EM-09025 under “C. Pipleline Cases,” Social Security said there may be some Title II suspensions it is not able to stop but benefits will be reinstated if the beneficiary contacts the Social Security Field Office or calls the 800 number within 35 days of the date of the notice. 1-800-772-1213 or TTY 1-800-325-0778. [EM-09025]
(2) Those who on or after April 1, 2009, have an appeal pending at the reconsideration, hearing or Appeals Council level will receive an appeal decision that follows the new policy – i.e., no denial or suspension based on a warrant unless the warrant has one of the 3 NCIC classifications or is a parole/probation warrant. This includes those who filed an appeal before April 1, 2009, and those who file an appeal on or after April 1. [EM-09025]
(3) A representative payee or applicant will not be automatically suspended or denied unless the warrant is a parole/probation warrant or has one of the three NCIC codes. However, SSA may use all warrant information in determining the suitability to serve as a representative payee. [EM-09024]
People not on benefits now because of a warrant may be entitled to be put back on benefits. Applicants who were denied and who are not on benefits now will also get special reapplication rights. However notices about rights will be sent to the person’s last known address. Since many of the addresses are no longer valid, Social Security will be keeping a list of people’s current addresses and telephone numbers as part of its first steps under the settlement agreement. See EM-09025 under “A. Field Office Walk-in Traffic/Phone Calls” and “B. TSC Calls.” To get your name on the list call Social Security’s 800 number: 1-800-772-1213 or the TTY number 1-800-325-0778. Say “add my name to the Martinez settlement list.” Ask the operator to repeat the information – spelling of your name, Social Security Number, address, telephone numbers - to make certain it is correct. You can give more than one telephone number. Disability Rights California asks for everyone’s help in identifying people who should be on the list and in helping those people get their names on the list.
2. Case No. C-08-4735, filed October 15 in the Northern District of California. Other counsel include the Legal Aid Society of San Mateo and the Urban Justice Center in New York.
3. We join the National Senior Citizens Law Center and other organizations that say that benefits cannot be denied or suspended on the basis of a parole or probation warrant alone, that there also has to be a finding of an actual violation.