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The Felony Exclusion Rule

Posted on :June 8, 2016Byjpadmin

Finding work with a felony on your record can be hard.  Getting the Social Security disability benefits you deserve could be equally hard due to your immediate criminal record.  An administrative law judge will probably not consider your conviction when determining whether you are disabled (unless it involved a business activity like drug dealing, in which case it could be considered income).  However, a law passed by Congress requires an administrative law judge to exclude any mental or physical impairments that were received while committing a crime or while you were in prison.

Before addressing the Felony Exclusion Rule, I want to briefly outline how imprisonment could affect your ability to receive certain types of Social Security disability benefits.  There are two primary types of Social Security disability benefits, Title 2 as a worker’s disability insurance and Title 16 as a general disability insurance.  If you were working at a job that withheld Social Security taxes, you could be eligible for the Title 2 worker’s disability insurance as well as the Title 16 general disability insurance.  However, the length of time you spent in prison could limit your eligibility since you were not working at a job that paid Social Security taxes during that time.  The calculations for determining whether your work history meets the Title 2 requirements of a certain number of credits earned over a particular number of years can be complicated to figure out, so be sure to talk with your attorney or a Social Security Administration representative to find out whether you are still eligible for Title 2 benefits based on your past work.

Felony Exclusion Rule

The Felony Exclusion Rule is a law passed by Congress that prevents felony-related or prison-related impairments from being considered in Title 2 disability determinations.  The Rule also stops payment of disability benefits for disabled workers and people who get childhood disability benefits if they go to prison or other correctional facility for a felony conviction (except for certain rehabilitation programs, so speak with your Social Security disability attorney).  However, having your benefits suspended will not stop payment of benefits to others (like a spouse or child) that are based on your benefits. This rule was passed as Public Law 96-473, 5(a-c) and can be found in the Social Security Act, sections 202(d), 216(i), 223(d) and 223(f).  The Felony Exclusion Rule applies to benefits payable October 19, 1980 or later, so they apply in most cases.

The Felony Exclusion Rule means that any physical or mental impairment you have that was caused while committing a felony (after October 19, 1980) or gpt significantly worse while you are in prison for a felony conviction will not be considered by the administrative law judge when determining whether you are currently disabled.  To guess at your past condition, the administrative law judge will review your medical records and other evidence in the file to get an idea your physical and mental state prior to the felony and imprisonment.  Based on this information, the judge will assess a series of limitations that will likely be far greater than what you are capable of doing.  The judge will, when making a decision, still take into account other factors like your current age and the amount of time that lapsed since you worked at your previous jobs.

As an example, a burglar gets shot while taking something from a house.  The bullet paralyzes the burglar so he can no longer walk or perform the basic tasks necessary for self-care.  The burglar is also convicted of a felony and sent to prison.  Since the burglar was paralyzed during the commission of a felony, his later application for Title 2 Social Security disability benefits will treat the person as they were before the felony, even though the person is now paralyzed.

As a more typical example, consider a construction worker who did his work for a number of years, injured his back terribly, and must get a spinal fusion so he can function at a basic level.  Now this construction worker gets arrested for drug use, convicted of a felony, and sent to prison.  Imagine that while he is in prison, the construction worker falls down and reinjures his back so badly that he can no longer function or take care of himself.  When the construction worker is released from prison, the Social Security Administration judge will have to treat the construction worker’s application for Title 2 benefits as if the worker still had a successful spinal fusion, even though the construction worker is in too much pain to do anything.

The good news is that the Felony Exclusion Rule may not be known to all administrative law judges since the instances where it would apply are infrequent.  Even so, you should speak with your attorney if you have a background that would be affected by the Felony Exclusion Rule. This warning will help your attorney prepare for your hearing by developing your claims for the periods before the relevant period that would be affected by your record.  Your attorney may also seek medical and other opinions about your physical or mental impairments that are sensitive to the Felony Exclusion Rule to try and limit its ability to harm your claim.  Your background may very well be a tough time that is over with and not something you want to keep bringing up again and again.  Still, your Social Security disability claim is extremely important and you should make sure your attorney knows about your past so they can do their best to help prepare for your future.

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