An Act to Reduce Recidivism by Improving Access to Benefits for Individuals with Psychiatric Disabilities upon Release from Incarceration

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V.B. Pre-Release Agreements
This section of the Model Law directs correctional agencies to use their best efforts to negotiate pre-release agreements with the Social Security Administration. The deadline for concluding negotiations should be inserted in Article XI.2.

A pre-release agreement is an agreement between a correctional agency and the Social Security Administration (SSA) to cooperate in the processing of SSI applications under SSA’s “pre-release procedure,”1 which is designed to “assur[e] eligible individuals timely SSI payments when they reenter the community.”2 Under this procedure, SSA (a) processes SSI applications from incarcerated individuals months before their anticipated release and (b) makes a prospective determination of potential eligibility and payment amount, based on anticipated circumstances.3 Through this approach, SSI cash benefits are payable as soon as feasible after—sometimes even on the day of—release.4

Pre-release agreements can be written or verbal,5 and can apply to one correctional facility, a group of facilities, or all the facilities in a jurisdiction.6

The SSA will process an application under the pre-release procedure for “those who:

• u appear likely to meet the criteria for SSI eligibility when they are released from the institution, and
• u may potentially be released within 30 days after notification of potential SSI eligibility.”7

Both sides make commitments. The correctional agency agrees to:

• identify and notify SSA of inmates who (a) are likely to meet SSI eligibility criteria upon release and (b) may potentially be released within 30 days of SSA’s making a prospective eligibility decision;8
• designate, for each correctional facility, a facility liaison to handle all referrals and to work with the local SSA office;
• provide current medical evidence and non-medical information that may support the inmate’s claim;
• provide the anticipated release date; and
• notify SSA if that date changes and when the inmate is actually released.

In return, SSA agrees to:

• train facility staff about SSI rules and work with them to ensure that application procedures work smoothly;
• provide a contact person at Social Security to assist facility staff with the pre-release procedure;
• process new applications and re-applications in an expeditious and timely manner;9 and
• promptly notify the facility of its decision on the inmate’s eligibility.10

When the inmate is released, SSA verifies the individual’s living arrangement, makes a final adjudication of the claim and initiates payment, all of which can be done expeditiously.11
A pre-release agreement works best when the office that makes the initial disability determination, the state’s Disability Determination Service, is involved in its crafting. A model pre-release agreement created by SSA can be found at POMS SI 00520.930 Exhibit 2.

Pre-release agreements may also be used to improve access to SSDI and to Food Stamps. Although the use of pre-release agreements to speed access to SSDI is not specifically mentioned in the statute or POMS, jurisdictions have negotiated such agreements with SSA.The pre-release procedure can be used to expedite an application for Food Stamps at the same time. Congress recently took steps to assure that inmates could apply for Food Stamps as well as SSI under SSA’s pre-relase procedure.12

Correctional agencies can take advantage of SSA’s pre-release procedure without entering into a pre-release agreement.13 However, it is preferable to have a pre-release agreement in place, for clarity about process and about the commitments made both by SSA and by the correctional agency.14

Example:

• Texas: Pursuant to a pilot pre-release project, federal benefit applications for SSI, SSDI and/or Food Stamps are submitted from correctional facilities to SSA 90 days prior to an inmate’s release from custody. Inmates who go through this process typically receive their disability checks very quickly upon release. The state provides a stipend to released inmates, which helps until the checks begin. The SSA regional office provided training to local SSA staff, who at first resisted the new process and did not fully understand SSA’s rules regarding inmates. Physicians at corrections facilities received training from SSA to help them provide the appropriate medical information concerning inmate’s disabilities. The approval rate of such applications “has increased by 27% since the inception of the program,” for which credit is given to “a well-trained and knowledgeable staff whose sole function is to expedite the Social Security application process.”15 “The financial benefit to local and state government is without question a positive outcome of the pilot. Another anticipated outcome is a more successful re-entry into the community once the offender is released from incarceration.”16
• Oklahoma: In partnership with SSA, the Medical Services Division of the Oklahoma Department of Corrections has initiated a program to connect inmates with SSA benefits prior to release in two state facilities (one for males with development delays and one for female inmates). The new program includes only inmates who were eligible for Social Security when they became incarcerated and those who are over 65. A “reintegration specialist” at each facility works with a counterpart at the local SSA office to pull together applications.17

V. C. Application Assistance.
The model law imposes on staff the obligation to complete applications, with the help and consent of the applicant. Alternatively, drafters might impose the obligation on the applicants themselves, directing that staff help them as desired. Typically, successful programs use staff to complete applications.

The model law does not identify the entity that will employ and train staff; however, it indicates that staff may be provided through contracts with local mental health agencies or providers. Providing application assistance through mental health case managers would be a good choice. The best approach may be to use staff who already have substantial benefits expertise, such as staff from the state mental health agency, public or private community-based mental heath providers, the state Medicaid agency or the state welfare agency. For such staff to work successfully within correctional settings, corrections officials must be receptive, cooperate fully and provide orientation and training so that the benefits staff will understand how to work within a jail or prison environment.

Federal Medicaid law directs that individuals be permitted to have assistance in applying for benefits.18 Federal Medicaid dollars may be used to pay for costs incurred in helping individuals to complete Medicaid applications, at the normal Medicaid match.19 The Americans with Disabilities Act requires that individuals with psychiatric disabilities be aided in completing applications for public benefits.

Notes

1. 42 U.S.C. § 1383(m) (SSA “shall develop a system under which an individual can apply for supplemental security income benefits [SSI] ... prior to the discharge or release of the individual from a public institution”); POMS SI 00520.910 B. “POMS” refers to the Social Security Administration’s Program Operations Manual System, available online at SSA’s website, http://policy.ssa.gov/poms.nsf.

2. POMS SI 00520.900 A; POMS DI 23530.001 A (pre-release procedure designed “to ensure title XVI funds are made available immediately upon an individual’s release”). See POMS SI 00520.900 B (“The prerelease procedure applies to penal institutions, as well as other public institutions.”).

3. “The distinguishing feature of the prerelease procedure is that it allows for the taking and processing of an SSI application for an institutionalized individual several months before his anticipated release. Furthermore, it allows for a prospective determination of potential eligibility and payment amount, based on anticipated circumstances. The procedure is intended to serve individuals who, because they are institutionalized, are currently ineligible for SSI...In addition to helping those who have never received SSI, the provision can also facilitate a reinstatement after suspension.” POMS SI 00520.900 A.

4. When SSI benefits are suspended, they can be reinstated immediately upon release. 20 C.F.R. § 416.1325. When SSI benefits have been have been terminated, or a new application is made, cash benefits cannot begin until the month following the month of the inmate’s release (i.e., the first full calendar month following release). 20 C.F.R. § 416.211(a)(1).

When suspended beneffits are restored immediately upon release, the inmate receives a pro-rated cash benefit for the month of release (i.e., the cash benefit is pro-rated for the portion of the month the inmate is “on the outside”). 20 C.F.R. § 416.421.

5. “An agreement may be formal (a written agreement signed by both parties), or informal.” POMS SI 00520.910 B.2

6. POMS SI 00520.910 B.1 (“The parties to a prerelease agreement are [SSA] and the institution (or the agency which administers more than one institution.”); see also POMS SI 00520.910 B.3.

7. POMS SI 00520.900 B

8. It is important to know how long it might take SSA to process an application and make a prospective eligibility determination. The POMS indicate that “if a release date within the life of the application is likely, [SSA] will] hold the claim until release. If not, ...[SSA] will take final action to disallow the claim.” POMS SI 00520.920 C.2.b; POMS SI DI 23530.001 D.4 (when an inmate is not released within “a specified time period (preferably 30 days) but release within the life of the application is likely, [SSA] holds the claim until release. If release not likely within the life of the application, [SSA] takes final action to deny the case on technical basis.”) (emphasis in original).

9. POMS SI 00520.910 B.4. See also POMS DI 23530.001 B (“For all applications received under the prerelease procedure, SSA will expedite determinations of SSI eligibility and payment amount.”); POMS SI 00520.900 C.2 (same); POMS SI 00520.930 at 2 (SSA will “[p]rocess all prerelease claims in an expeditious and timely manner”).

10. POMS SI 00520.920 C.1.a (SSA will “[n]otify institutions of the determination of potential eligibility as soon as possible”); see POMS SI 00520.920 C.1.c ( “When ... [an inmate] files, [SSA will] issue an informal notice to the institution to let the institution know as quickly as possible whether payments can be expected, so that release planning can continue.”).

11. POMS SI 00520.920 A.6 (“When the person has actually been released from the institution, recontact the person to verify the living arrangement, adjudicate the claim and, if eligible, initiate payment.”) See also POMS SI 00520.920 C.2.c-d.

12. 42 U.S.C. §1383(n) (“The Commissioner of Social Security and the Secretary of Agriculture shall develop a procedure under which an individual who applies for supplemental security income benefits under ... [SSA’s pre-release procedure] shall also be permitted to apply at the same time for participation in the food stamp program authorized under the Food Stamp Act of 1977 (7 U.S.C. § 2011 et seq.”). Some guidance on implementing this obligation is set out at 7 C.F.R. § 273.2(l) and POMS SI 01801.005, SI 01801.275, and SI DAL01801.020. The guidance is less than clear.

13. POMS SI 00520.900 C1 (SSA will accept benefits applications under the pre-release procedure “without regard to whether a pre-release agreement exists”); POMS SI 00520.910 (“a formal agreement is not a prerequisite for utilizing prerelease [procedure”).

14. Id. (“a formal agreement...is a highly desirable means of ensuring understanding by all parties.”).

15. The improved process for benefit access is part of a broader initiative for release planning and follow-up community care. The Texas Council has contracted with local mental health and human services agencies for staff to visit inmates six months prior to release, to engage in pre-release planning, help inmates access benefits and either provide follow-up care (when the inmate is released into the same community as the corrections facility) or arrange follow-up care in the inmate’s home community (for those sent to corrections facilities in other parts of the state). For more information, the program’s website is http://www.tdcj.state.tx.us/tcomi/tcomi-home.htm. The Biennial Report of the Texas Council on Offenders with Mental Impairments, Submitted to the Governor, Lieutenant Governor, Speaker of the House (2003), at 26-27.

16. Id. at 28.

17. “Oklahoma DOC Partners with Social Security Administration to Benefit Inmates,” The Corrections Connection Health Care Network at www.corrections.com; also at the state’s Department of Corrections website, www.doc.state.ok.us.

18. 42 C.F.R. § 435.908 (state must allow individual to bring someone to assist in the application process). See Mount Sinai Hosp. v. Kornegay, 347 N.Y.S. 2d 807 (N.Y. Civ. Ct. 1973) (finding affirmative duty of hospital to assist participant in applying for Medicaid benefits). See also 42 U.S.C. §1396a(a)(19) (state plan must provide safeguards necessary to ensure that eligibility will be determined and services provided consistent with the best interests of recipients).

19. 42 C.F.R. § 436.1001 (providing that federal financial assistance is available to cover necessary administrative costs incurred in determining eligibility).