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GENERAL LAWS
AND INFO ON 2 KINDS OF DISABILITY PROGRAMS
(1) SSI AND (2) SSDI:
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U.S. Department of Health and Human Services
Administration for Children & Families
Office of Child Support Enforcement
DCL-00-103 OCT. 6, 2000
TO: ALL STATE IV-D DIRECTORS
RE: Attachment of Social Security Benefits
Dear Colleague:
With the widespread implementation of Financial Institution Data Match
programs, lien and levy activity has increased. We have received numerous
inquiries regarding the attachment of funds originating as Social
Security benefits. To assist States and financial institutions in
determining their obligations regarding actions taken against Social
Security funds, we are providing the following answers to frequently
asked questions on this subject.
Question: Are Social Security Disability benefits attachable for child
support purposes?
Answer: Yes. Generally, Social Security Disability (SSD) payments
under Title II of the Social Security Act (the Act) are not subject
to attachment or other legal process, pursuant to section 207(a) of
the Act (42 U.S.C. 407(a)). No other provision of law can override
this protection "except to the extent that it does so by express
reference to this section." Section 207(b) of the Act, 42 U.S.C.
407(b).
SSD benefits are attachable for child support purposes, because section
207 of the Act is expressly overridden by section 459(a) of the Act
(42 U.S.C. 659(a)). Section 459 provides that payments from the Federal
government, the entitlement to which is based upon remuneration for
employment, are subject to income withholding or other legal process
brought by a State IV-D agency or an individual obligee for purposes
of enforcing child support obligations. Section 459(h)(1)(A)(ii)(I)
of the Act (42 U.S.C. 659(h)(1)(A)(ii)(I)) specifies that payments
under Title II of the Act, which includes SSD payments, are considered
to be based upon remuneration for employment. In addition, federal
regulations governing federal personnel at 5 C.F.R. 581.103(c)(1)
specify that SSD is attachable for child support purposes.
SSD funds can be attached to satisfy child support obligations even
if the support entitlement has been assigned to the State. The assignment
does not change the nature of the debt, only the payee. See, Knickerbocker
v. Norman, 938 F.2d 891 (8th Cir., Iowa,1991), Shepherd v. Shepherd,
467 N.W.2d 237 (Iowa 1991).
Question: Are Supplemental Security Income benefits attachable for
child support purposes?
Answer: No. The provisions of section 207(a) of the Act (42 U.S.C.
407(a)), prohibiting attachment of benefits, are specifically made
applicable to Supplemental Security Income (SSI) benefits pursuant
to section 1631(d)(1) of the Act (42 U.S.C. 1383(d)). Federal regulations
at 5 CFR 581.104(j) also specify that SSI benefits are not subject
to garnishment. In addition, section 459 of the Act (42 U.S.C. 659),
which overrides section 207 of the Act, provides that only benefits
which are based upon remuneration for employment are subject to legal
process for child support enforcement. Supplemental Security Income
(SSI) payments are not based upon remuneration for employment; rather,
they are provided based on need. Some courts have held that SSI is
a form of public assistance, intended to protect the individual recipient
from poverty. See, Becker County Human Servs. Re Becker County Foster
Care v. Peppel, 493 N.W.2d 573 (Minn. App. 1992), Tennessee Dept.
of Human Servs ex rel Young v. Young, 802 S.W.2d 594 (Tenn. 1990).
SSI payments are not included as moneys subject to process in section
459(h) of the Act.
(Some courts have held that, although SSI payments can not be attached
through legal process for the enforcement of child support obligations,
they can be considered income for purposes of calculating the child
support obligation. See, Davis v. Office of Child Support Enforcement,
5 S.W.3d 58 (Ark. App. 1999), Commonwealth ex rel. Morris v. Morris,
984 S.W.2d 840 (Ky. 1998), reh. denied 2/18/99, Whitmore v. Kenney,
626 A.2d 1190 (Pa. Super. 1993).)
Question: When SSI benefits are paid into a bank account, do they
retain their character as protected benefits?
Answer: Yes. The U.S. Supreme Court has held that Social Security
funds deposited into a bank account "retained the quality of
145 moneys' within the purview of section 407[.]" Philpott v.
Essex County Welfare Bd., 409 U.S. 413, 93 S.Ct. 590, 34 L.Ed.2d 608
(1973). Courts have also held that the funds remain exempt from legal
process even if they are commingled in a bank account with other funds,
so long as they are reasonably traceable to Social Security. NCNB
Fin. Servs. V. Shumate, 829 F.Supp. 178 (W.D. Va. 1993), affd. 45
F.3d 427, cert. Denied 115 S.Ct. 2616. Since the prohibition on the
attachment of SSI payments is based on the same statutory provisions
as apply to Social Security, i.e. section 207 of the Act (42 U.S.C.
407), the reasoning in these cases would apply equally to SSI payments.
I hope that this is helpful to you. Thank you for your continued efforts
on behalf of America's children.
Sincerely,
David Gray Ross
Commissioner
Office of Child Support Enforcement
Administration for Children and Families
370 L'Enfant Promenade, S.W.
Washington, D.C. 20447 |
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