Time is running out to submit comments to the Federal Register regarding Social Security benefits and Supplemental Security Income (SSI) payments that representative payees receive for children and youth in foster care. The deadline is Monday, December 2, 2024. Comments may be submitted online, by fax, or by mail and should refer to Docket No. SSA-2024-0038 to be associated with the correct docket. It is strongly recommended that comments be made online using the Federal eRulemaking portal.
This request for information comes from the Social Security Administration (SSA) and the Administration on Children and Family (ACF) to inform internal policy decisions. They are seeking to learn from people with lived experience in foster care, both current and former foster care youth, parents, adoptive parents, and parents whose children were referred to child welfare. Information is also sought from state and local child welfare agencies, Tribal nations, community-based organizations, researchers, and interested members of the public.
A 2021 Marshall Project and National Public Radio (NPR) investigation found that in at least 36 states and Washington, DC, state foster care agencies applied to become children’s financial representatives, a process permitted by federal regulations. Once approved, state agencies confiscate Social Security benefits, most often without notifying beneficiaries, their loved ones, or lawyers. In at least ten states, for-profit companies are hired to collect millions of dollars intended for the most vulnerable children in state care.
At least one in ten children and youth in foster care are eligible for Social Security benefits due to the death of a parent or SSI payments because they have a physical or mental disability. The benefit typically exceeds $700 monthly—although survivor benefits vary widely—and is considered their property under federal law. The most recent survey data by Child Trends in 2018 found state foster care agencies collected more than $165 million from children in foster care. The money is used to reimburse states for the cost of foster care, a practice restricted by federal law.
It is legal for state agencies to apply to be foster care children’s financial representatives, although parents, foster parents, or family are preferred. Agencies argue that children and youth are not mature enough to make responsible decisions about spending money. Child Trends is promoting the creation of Achieving a Better Life Experience (ABLE) accounts to set aside benefits for foster care children receiving disability funds, which can be halted once the $2000 resource limit is reached.
In the landmark 2002 case of Washington State Department of Health and Human Services v. Guardianship Estate of Keffeler, the Supreme Court unanimously ruled the state’s use of Social Security benefits to reimburse itself does not violate the Social Security Act’s anti-attachment provision. The Court reasoned that the Department’s actions did not amount to an “execution, levy, attachment, or garnishment.” The Court also noted that an adverse ruling for the state could disadvantage children in foster care.
However, it is youth aging out of foster care who have suffered the most from the loss of assets that could have been available had they received their benefits. As a result, only three percent earn four-year college degrees, less than half are employed by age 24, and 34 percent experience homelessness or housing instability. Being denied assets has also injured the credit ratings of many of these young people.
Congress has been reluctant to pass legislation addressing federal benefits for children and youth in and aging out of foster care. However, this has been a vital issue for Congressmen Danny Davis (D-IL-7), Don Bacon (R-NE-2), and Jamie Raskin (D-MD-8), who are closely monitoring this Request for Information and have urged the Biden Administration to use its authority to limit states’ ability to use the assets and benefits of foster youth to reimburse state costs of care until comprehensive legislation is enacted.
Suppose you know someone whose benefits were confiscated while in foster care. In that case, they can appeal to the Social Security Administration to learn about their rights in receiving compensation for Social Security and/or SSI by calling toll-free 800-772-1213 (TTY 800-325-0778). It is a complicated process and may require some assistance and persistence. Be sure to speak to an actual person and not a virtual assistant. Seek out state agencies and nonprofit organizations that may assist you.