83 FR 51400 - Prohibiting Persons With Certain Criminal Convictions From Serving as Representative Payees

SOCIAL SECURITY ADMINISTRATION

Federal Register Volume 83, Issue 197 (October 11, 2018)

We propose to amend our regulations to prohibit persons convicted of certain crimes from serving as representative payees under the Social Security Act (Act). We are proposing these revisions because of changes to the Act made by the Strengthening Protections for Social Security Beneficiaries Act of 2018.

[Federal Register Volume 83, Number 197 (Thursday, October 11, 2018)]
[Proposed Rules]
[Pages 51400-51403]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-22168]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / 
Proposed Rules

[[Page 51400]]



SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404, 408 and 416

[Docket No. SSA-2015-0006]
RIN 0960-AH78


Prohibiting Persons With Certain Criminal Convictions From 
Serving as Representative Payees

AGENCY: Social Security Administration.

ACTION: Notice of proposed rulemaking.

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SUMMARY: We propose to amend our regulations to prohibit persons 
convicted of certain crimes from serving as representative payees under 
the Social Security Act (Act). We are proposing these revisions because 
of changes to the Act made by the Strengthening Protections for Social 
Security Beneficiaries Act of 2018.

DATES: Send comments on or before November 13, 2018.

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-2015-0006, so 
that we may associate your comments with the correct regulation.
    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 http://www.regulations.gov. Use the Search function to find docket number 
SSA-2015-0006. The system will issue 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, 3100 West High Rise, 
6401 Security Boulevard, Baltimore, Maryland 21235-6401.
    Comments are available for public viewing on the Federal 
eRulemaking portal at http://www.regulations.gov or in person, during 
regular business hours, by arranging with the contact person identified 
below.

FOR FURTHER INFORMATION CONTACT: Kevin Salamone, Office of Income 
Security Programs, Social Security Administration, 6401 Security 
Boulevard, Baltimore, MD 21235-6401, (410) 966-0854. 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 http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: 

Background

    Social Security's Representative Payment Program provides benefit 
payment management for our beneficiaries who are incapable of managing 
their Social Security or Supplemental Security Income (SSI) payments or 
directing another person to manage those payments due to a mental or 
physical impairment. Generally, if a beneficiary or recipient is under 
age 18, we will pay benefits to a representative payee; in certain 
situations, we make direct payments to a beneficiary under age 18 who 
shows the ability to manage the benefits. In cases where the 
beneficiary or recipient is 18 years or older, we select a 
representative payee if we believe that payment of benefits through a 
representative payee, rather than direct payment to the beneficiary, 
will better serve the beneficiary's interest. A representative payee 
may be an organization, such as a social service agency, or a person, 
such as a parent, relative, or friend of the beneficiary. We require a 
representative payee to use benefits in the beneficiary's best interest 
and, with certain exceptions, to report expenditures to us to ensure 
the representative payee is using funds appropriately.\1\
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    \1\ Payees may receive an annual Representative Payee Report to 
account for the benefit payments received. Due to Public Law 115-
165, 132 Stat. 1257, we no longer require the following payees to 
complete an annual Representative Payee Report: (1) Natural or 
adoptive parents of a minor child beneficiary who primarily reside 
in the same household as the child; (2) Legal guardians of a minor 
child beneficiary who primarily reside in the same household as the 
child; (3) Natural or adoptive parents of a disabled adult 
beneficiary who primarily reside in the same household with the 
beneficiary; and (4) Spouse of a beneficiary.
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    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. 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.
    On April 13, 2018, the President signed into law the Strengthening 
Protections for Social Security Beneficiaries Act of 2018.\2\ Section 
202 of this law codifies our current policy, implemented in February 
2014, to conduct criminal background checks on representative payee 
applicants and prohibit the selection of certain representative payee 
applicants who have a felony conviction of committing, attempting, or 
conspiring to commit certain crimes. In addition, the legislation 
requires that we conduct criminal background checks on all currently 
serving representative payees who do not meet one of the exceptions set 
out in the law, and continue to do so at least once every five 
years.\3\
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    \2\ Public Law 115-165, 132 Stat. 1257.
    \3\ We may not apply these prohibitions as an absolute bar to 
serving as a representative payee if the representative payee 
applicant is the custodial parent of the minor child beneficiary, 
custodial parent of a beneficiary who is under a disability which 
began before the beneficiary attained age 22, custodial spouse of 
the beneficiary, custodial grandparent of the minor child 
beneficiary, custodial court-appointed guardian of the beneficiary, 
parent who was previously the representative payee for his or her 
minor child who since turned age 18 and continued to be eligible for 
benefits; or if the representative payee applicant received a 
Presidential or gubernatorial pardon for the conviction.
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    In order to conform our regulations to the new law, we propose, in 
Sec. Sec.  404.2020(f) and 416.620(f), to consider the potential 
representative payee's criminal history when we

[[Page 51401]]

determine if we should select the individual to serve as a 
representative payee. As part of our consideration, we will conduct a 
criminal background check on the representative payee applicant, and if 
we select the applicant as representative payee, we will conduct a 
criminal background check at least once every five years as provided in 
proposed Sec. Sec.  404.2026, 408.626 (by cross reference), and 
416.626.
    We also propose to add a new paragraph to current Sec. Sec.  
404.2022 and 416.622 of our regulations to reflect the felony 
prohibitions in the legislation. This new paragraph will explain that 
we are prohibited from selecting representative payee applicants with a 
felony conviction of: (1) Human trafficking, (2) false imprisonment, 
(3) kidnapping, (4) rape and sexual assault, (5) first-degree homicide, 
(6) robbery, (7) fraud to obtain access to government assistance, (8) 
fraud by scheme, (9) theft of government funds or property, (10) abuse 
or neglect, (11) forgery, or (12) identity theft.\4\ As further 
provided in proposed Sec. Sec.  404.2022(f) and 416.622(f), we will 
also prohibit the selection of a representative payee applicant with a 
felony conviction of an attempt to commit any of these crimes or 
conspiracy to commit any of these crimes.
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    \4\ We recognize that under the laws of the various States, 
there may be slight differences in the terminology each State uses 
to identify and define each of the specified crimes. When we 
finalize these rules, we will provide our adjudicators with State-
specific lists of what constitutes the specified crimes.
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    We will also apply the background check and prohibitions to 
representative payee applicants under the Special Veterans Benefits 
program established by title VIII of the Act and part 408 of our rules. 
When we consider who may serve as a representative payee under the 
rules in part 408, we apply the title II rules that we propose to amend 
here, so those revisions will also apply to representative payee 
applicants under the Special Veterans Benefits program.\5\
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    \5\ See 20 CFR 408.620 (applying the rules in 20 CFR 404.2020 to 
the title VIII program); 20 CFR 408.622 (applying the rules in 20 
CFR 404.2022 to the title VIII program); 20 CFR 408.624 (applying 
the rules in 20 CFR 404.2024 to the title VIII program); and 20 CFR 
408.625 (applying the rules in 20 CFR 404.2025 to the title VIII 
program).
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    Consistent with our current policy, we are not proposing to apply 
these prohibitions as an absolute bar to selection for certain 
representative payee applicants. Instead, we will consider the criminal 
history of the applicant along with our other evaluation criteria \6\ 
to decide whether to appoint the applicant as a representative payee.
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    \6\ We consider the following information when selecting an 
applicant to be a representative payee: (a) The relationship of the 
applicant to the beneficiary; (b) the amount of interest that the 
applicant shows in the beneficiary, (c) any legal authority the 
applicant has to act on behalf of the beneficiary; (d) whether the 
applicant has custody of the beneficiary; and (e) whether the 
applicant is in a position to know of and look after the needs of 
the beneficiary. 20 CFR 404.2020 and 416.620.
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    Consistent with the new law, we will not apply the criminal 
prohibitions as an absolute bar if the representative payee applicant 
is: The custodial parent of the minor child beneficiary the 
representative payee applicant seeks to serve; the custodial parent of 
the disabled beneficiary the representative payee applicant seeks to 
serve if the beneficiary's disability began before the beneficiary 
attained age 22; the custodial spouse, custodial grandparent of a minor 
child, or custodial court-appointed legal guardian of the beneficiary 
the representative payee applicant seeks to serve (Sec. Sec.  
404.2022(f) and 416.622(f)). We also will not apply the prohibitions as 
an absolute bar if the representative payee applicant is the parent who 
was previously the representative payee for his or her minor child who 
since turned age 18 and continued to be eligible for benefits. 
(Sec. Sec.  404.2022(f)(1) and 416.622(f)(1)). Finally, we will not 
apply the prohibitions as an absolute bar if the representative payee 
applicant received a Presidential or gubernatorial pardon for the 
conviction. (Sec. Sec.  404.2022(f)(3) and 416.622(f)(3)). Instead, we 
will include the criminal information in our consideration of the best 
interests of the recipient or beneficiary when we determine whether to 
select an applicant to serve as a representative payee.
    We are also correcting an incorrect cross reference in Sec. Sec.  
404.2024(a)(9) and 416.624(a)(9) to Sec. Sec.  404.2022(e) and 
416.622(e) respectively.

Regulatory Procedures

Executive Order 12866 as Supplemented by Executive Order 13563

    We consulted with OMB and determined that this proposed rule meets 
the criteria for a significant regulatory action under Executive Order 
12866, as supplemented by Executive Order 13563. Thus, OMB reviewed the 
proposed rule.

Executive Order 13771

    This proposed rule is not subject to the requirements of Executive 
Order 13771 because it is administrative in nature and results in no 
more than de minimis costs.

Regulatory Flexibility Act

    We certify that this proposed rule will not have a significant 
economic impact on a substantial number of small entities because it 
affects only individuals. Therefore, the Regulatory Flexibility Act, as 
amended, does not require us to prepare a regulatory flexibility 
analysis.

Paperwork Reduction Act

    These rules do not create any new or affect any existing 
collections and, therefore, do not require Office of Management and 
Budget approval under the Paperwork Reduction Act.

What is our authority to make rules and set procedures for determining 
whether a person is disabled under the statutory definition?

    The Act authorizes us to make rules and regulations and to 
establish necessary and appropriate procedures to implement them.\7\

    \7\ Sections 205(a), 702(a)(5), and 1631(d)(1).

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social 
Security--Disability Insurance; 96.002, Social Security--Retirement 
Insurance; 96.004, Social Security--Survivors Insurance; 96.006, 
Supplemental Security Income; and 96.020--Special Benefits for 
Certain World War II Veterans)

List of Subjects

20 CFR Part 404

    Administrative practice and procedure, Aged, Blind, Disability 
benefits, Disability insurance, Old-age, Survivors, Reporting and 
recordkeeping requirements, Social security.

20 CFR Part 408

    Administrative practice and procedure, Aged, Reporting and 
recordkeeping requirements, Social security, Supplemental Security 
Income (SSI), Veterans.

20 CFR Part 416

    Administrative practice and procedure, Aged, Blind, Disability 
benefits, Public assistance programs, Reporting and recordkeeping 
requirements, Supplemental Security Income (SSI).

Nancy A. Berryhill,
Acting Commissioner of Social Security.

    For the reasons stated in the preamble, we propose to amend 20 CFR 
chapter III, parts 404, 408, and 416 as set forth below:

[[Page 51402]]

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE 
(1950-)

Subpart U--Representative Payment

0
1. The authority citation for subpart U of part 404 continues to read 
as follows:

    Authority: Secs. 205(a), (j), and (k), and 702(a)(5) of the 
Social Security Act (42 U.S.C. 405(a), (j), and (k), and 902(a)(5)).

0
2. Amend Sec.  404.2020 by revising paragraphs (d) and (e) and adding 
paragraph (f) to read as follows:


Sec.  404.2020   Information considered in selecting a representative 
payee.

* * * * *
    (d) Whether the potential payee has custody of the beneficiary;
    (e) Whether the potential payee is in a position to know of and 
look after the needs of the beneficiary; and
    (f) The potential payee's criminal history.
0
3. Amend Sec.  404.2022 by adding paragraph (f) to read as follows:


Sec.  404.2022  Who may not serve as a representative payee?

* * * * *
    (f) Was convicted under Federal or State law of a felony for: Human 
trafficking, false imprisonment, kidnapping, rape or sexual assault, 
first-degree homicide, robbery, fraud to obtain access to government 
assistance, fraud by scheme, theft of government funds or property, 
abuse or neglect, forgery, or identity theft or identity fraud. We will 
also apply this provision to a representative payee applicant with a 
felony conviction of an attempt to commit any of these crimes or 
conspiracy to commit any of these crimes.
    (1) If the representative payee applicant is the custodial parent 
of a minor child beneficiary, custodial parent of a beneficiary who is 
under a disability which began before the beneficiary attained the age 
of 22, custodial spouse of a beneficiary, custodial court-appointed 
guardian of a beneficiary, or custodial grandparent of the minor child 
beneficiary for whom the applicant is applying to serve as 
representative payee, we will not consider the conviction for one of 
the crimes, or of attempt or conspiracy to commit one of the crimes, 
listed in this paragraph, by itself, to prohibit the applicant from 
serving as a representative payee. We will consider the criminal 
history of an applicant in this category, along with the factors in 
paragraphs (a) through (e) of this section, when we decide whether it 
is in the best interest of the individual entitled to benefits to 
appoint the applicant as a representative payee.
    (2) If the representative payee applicant is the parent who was 
previously the representative payee for his or her minor child who has 
since turned age 18 and continues to be eligible for benefits, we will 
not consider the conviction for one of the crimes, or of attempt or 
conspiracy to commit one of the crimes, listed in this paragraph, by 
itself, to prohibit the applicant from serving as a representative 
payee for that beneficiary. We will consider the criminal history of an 
applicant in this category, along with the factors in paragraphs (a) 
through (e) of this section, when we decide whether it is in the best 
interest of the individual entitled to benefits to appoint the 
applicant as a representative payee.
    (3) If the representative payee applicant received a Presidential 
or gubernatorial pardon for the relevant conviction, we will not 
consider the conviction for one of the crimes, or of attempt or 
conspiracy to commit one of the crimes, listed in this paragraph, by 
itself, to prohibit the applicant from serving as a representative 
payee. We will consider the criminal history of an applicant in this 
category, along with the factors in paragraphs (a) through (e) of this 
section, when we decide whether it is in the best interest of the 
individual entitled to benefits to appoint the applicant as a 
representative payee.

0
4. Amend Sec.  404.2024 by revising paragraph (a)(9) and adding 
paragraph (a)(10) to read as follows:


Sec.  404.2024   How do we investigate a representative payee 
applicant?

* * * * *
    (a) * * *
    (9) Determine whether the payee applicant is a creditor of the 
beneficiary (see Sec.  404.2022(e)).
    (10) Conduct a criminal background check on the payee applicant.
* * * * *
0
5. Add Sec.  404.2026 to read as follows:


Sec.  404.2026   How do we investigate an appointed representative 
payee?

    After we select an individual or organization to act as your 
representative payee, we will conduct a criminal background check on 
the appointed representative payee at least once every 5 years.

PART 408--SPECIAL BENEFITS FOR CERTAIN WORLD WAR II VETERANS

Subpart F--Representative Payment

0
6. The authority citation for subpart F of part 408 continues to read 
as follows:

    Authority: Secs. 702(a)(5), 807, and 810 of the Social Security 
Act (42 U.S.C. 902(a)(5), 1007, and 1010).

0
7. Add Sec.  408.626 to read as follows:


Sec.  408.626   How do we investigate an appointed representative 
payee?

    After we select an individual or organization as your 
representative payee, we investigate him or her following the rules in 
Sec.  404.2026 of this chapter.

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED

Subpart F--Representative Payment

0
8. The authority citation for subpart F of part 416 continues to read 
as follows:

    Authority:  Secs. 702(a)(5), 1631(a)(2) and (d)(1) of the Social 
Security Act (42 U.S.C. 902(a)(5) and 1383(a)(2) and (d)(1)).

0
9. Amend Sec.  416.620 by revising paragraphs (d) and (e) and adding 
paragraph (f) to read as follows:


Sec.  416.620   Information considered in selecting a representative 
payee.

* * * * *
    (d) Whether the potential payee has custody of the beneficiary;
    (e) Whether the potential payee is in a position to know of and 
look after the needs of the beneficiary; and
    (f) The potential payee's criminal history.
0
10. Amend Sec.  416.622 by adding paragraph (f) to read as follows:


Sec.  416.622   Who may not serve as a representative payee?

* * * * *
    (f) Was convicted under Federal or State law of a felony for: Human 
trafficking, false imprisonment, kidnapping, rape or sexual assault, 
first-degree homicide, robbery, fraud to obtain access to government 
assistance, fraud by scheme, theft of government funds or property, 
abuse or neglect, forgery, or identity theft or identity fraud. We will 
also apply this provision to a representative payee applicant with a 
felony conviction of an attempt to commit any of these crimes or 
conspiracy to commit any of these crimes.
    (1) If the representative payee applicant is the custodial parent 
of a minor child beneficiary, custodial parent of a beneficiary who is 
under a disability which began before the beneficiary attained the age 
of 22, custodial spouse of a beneficiary, custodial court-appointed 
guardian of a beneficiary, or custodial grandparent of the minor child 
beneficiary for whom the applicant is applying to serve as

[[Page 51403]]

representative payee, we will not consider the conviction for one of 
the crimes, or of attempt or conspiracy to commit one of the crimes, 
listed in this paragraph, by itself, to prohibit the applicant from 
serving as a representative payee. We will consider the criminal 
history of an applicant in this category, along with the factors in 
paragraphs (a) through (e) of this section, when we decide whether it 
is in the best interest of the individual entitled to benefits to 
appoint the applicant as a representative payee.
    (2) If the representative payee applicant is the parent who was 
previously the representative payee for his or her minor child who has 
since turned age 18 and continues to be eligible for benefits, we will 
not consider the conviction for one of the crimes, or of attempt or 
conspiracy to commit one of the crimes, listed in this paragraph, by 
itself, to prohibit the applicant from serving as a representative 
payee for that beneficiary. We will consider the criminal history of an 
applicant in this category, along with the factors in paragraphs (a) 
through (e) of this section, when we decide whether it is in the best 
interest of the individual entitled to benefits to appoint the 
applicant as a representative payee.
    (3) If the representative payee applicant received a Presidential 
or gubernatorial pardon for the relevant conviction, we will not 
consider the conviction for one of the crimes, or of attempt or 
conspiracy to commit one of the crimes, listed in this paragraph (f), 
by itself, to prohibit the applicant from serving as a representative 
payee. We will consider the criminal history of an applicant in this 
category, along with the factors in paragraphs (a) through (e) of this 
section, when we decide whether it is in the best interest of the 
individual entitled to benefits to appoint the applicant as a 
representative payee.
0
11. Amend Sec.  416.624 by revising paragraph (a)(9) and adding 
paragraph (a)(10) to read as follows:


Sec.  416.624  How do we investigate a representative payee applicant?

* * * * *
    (a) * * *
    (9) Determine whether the payee applicant is a creditor of the 
beneficiary (see Sec.  404.2022(e)) of this chapter.
    (10) Conduct a criminal background check on the payee applicant.
* * * * *
0
12. Add Sec.  416.626 to read as follows:


Sec.  416.626   How do we investigate an appointed representative 
payee?

    After we select an individual or organization to act as your 
representative payee, we will conduct a criminal background check on 
the appointed representative payee at least once every 5 years.

[FR Doc. 2018-22168 Filed 10-10-18; 8:45 am]
 BILLING CODE 4191-02-P