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New Representative Payee Protections Signed Into Law

Kristi Khughes May 14, 2018

Congress first authorized the Social Security Administration (SSA) to make benefit payments to another person or organization – known as a representative payee – when a beneficiary is not capable of managing his or her own Social Security benefits in 1939. Millions of Social Security beneficiaries, including children, seniors, and individuals with disabilities, have representative payees.  It has been 14 years, however, since the last overhaul of the representative payee program. In the interim, significant concerns have raised about the SSA’s management of this program.

 

In a rare example of bipartisanship, Congress recently passed the Strengthening Protections for Social Security Beneficiaries Act of 2018 (H.R. 4547). The bill, which the sponsors claim will help modernize the representative payee program, was signed into law by the President on April 13, 2018, the effective date of the Act.

 

Specifically, the Strengthening Protections for Social Security Beneficiaries Act of 2018 will:

 

  • Increase oversight of representative payees by increasing the number of performance reviews of payees, requiring additional types of reviews, and improving the effectiveness of reviews;
  • Eliminate the requirement to file the annual accounting form for representative payees who are parents living with their children or who are spouses;
  • Require SSA to identify whether a beneficiary is in foster care and reassess whether the payee is appropriate, and direct SSA to study how better to coordinate with Adult Protective Services and with state guardianship courts;
  • Allow beneficiaries to make a designation of their preferred payee in advance, and require SSA to assess the appropriateness of the order-of-preference list it uses to select payees;
  • Codify the policy that bans individuals with certain criminal convictions from serving as payees (including individuals currently serving as payees) and prohibiting individuals who have payees from serving as a payee for others; and
  • Limit overpayment liability for children in the child welfare system. (See related article on page 8 announcing SSA’s Emergency Message implementing this provision.)

 

While some of these changes are clearly improvements, advocates are not as sanguine about others, particularly the elimination of reporting requirements for family members. Mandatory accounting by parents and guardians of children and persons with disabilities in same household and all spouses was made a statutory requirement for all representative payees in 1994 as a result of litigation by Justice in Aging, formerly the National Senior Citizens Law Center. The implications of the new law on the litigation are under review.

 

SSA may be contemplating other changes to the representative payee system. A report by the Social Security Advisory Board, which was summarized in the January 2018 edition of the Disability Law News, made recommendation for improvements. Among other things, it recommended the Office of Management and Budget (OMB) study how best to coordinate the management of federal benefits for people who have been determined to be financially incapable, with the recognition of alternative approaches such as Supported Decision Making (SDM). A key characteristic of an SDM system is the promotion and support of self-advocacy.

 

SSA’s most recent National Disability Forum on April 18th focused on “Financial Independence: Directing the Management of One’s Social Security Benefits.” https://www.ssa.gov/ndf/ndf_outreach.htm#ht=8.  Kate Lang, an attorney with Justice in Aging, spoke on a panel about the role of “supporters” in providing assistance to Social Security and SSI recipients.  Specifically, Kate discussed how SSA might adapt the representative payee program to reflect models of supported decision making for older adults, thereby allowing Social Security and SSI recipients to retain more control of their own benefits.  In doing so, SSA could not only decrease the number of representative payees serving individuals who are generally capable of managing their own benefits, but it would also promote the financial independence of those receiving benefits who require only a minimal amount of support.

 

For additional ideas for improvements, especially in regard to monitoring representative who are creditors such as nursing homes and other institutions, see http://www.justiceinaging.org/wp-content/uploads/2018/01/Skilled-Nursing-Facilities-and-Other-Creditors-Acting-As-Representative-Payees.pdf?eType=EmailBlastContent&eId=5307d057-30af-4476-baf2-dd0fda05b063.